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3.15 pm

The Secretary of State spoke about cases in which victims of crime had their premises, homes or commercial premises entered, which led to their being in fear and using force—sometimes lethal force. The consequence of that use of force was not only an initial police arrest but a subsequent investigation and often a prosecution. The fact that the jury usually acquits the defendant does not remove the great stress that any such actions cause. It is common ground between the Opposition and the Secretary of State, who has recognised that the law inadequately protects the interests of the householder or shopkeeper, that some restatement is needed.

Mr. Henry Bellingham (North-West Norfolk) (Con): My hon. Friend has hit on an important point. The Lord Chancellor said a moment ago that it is up to the jury to decide. My hon. Friend is right that many such
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cases should never go to court. How can someone, in the middle of the night and on the spur of the moment, make a judgment in seconds when the law is so complicated? New clause 6 is very complicated. The great virtue of my hon. Friend’s proposed alternative is that it simplifies and clarifies the law, and that is why it should be accepted.

Nick Herbert: My hon. Friend is right. The point at issue is that when someone enters a premises—a home or a shop—they cross a physical line. Historically, we have regarded our homes as our castles. People who respond to burglars, fearful of the situation, might feel the need, on the spur of the moment, to use some force in repelling that individual. They make a split-second decision. No codification will help them in making a judgment about the correct level of force to use in those circumstances.

Mr. Shailesh Vara (North-West Cambridgeshire) (Con): In his speech to the Labour party conference, the Justice Secretary said that he would like to

in this area. Does my hon. Friend agree that the Government’s new clause does not amend or review the balance of the law? It simply tinkers with the existing state of affairs. The Opposition new clauses would achieve what the Secretary of State said he would achieve and would amend the balance of the law.

Nick Herbert: I agree. As my hon. Friend the shadow Attorney-General pointed out, the Secretary of State’s amendments merely restate case law. It is important that Parliament sends out a clear and unambiguous signal to the owners of homes and premises that the law will be on their side should they have to use force where they are fearful of the actions that a trespasser might take. I do not see how restating existing case law will send out a clear and unambiguous signal from this House.

Mr. Vaizey: Will my hon. Friend confirm that the Secretary of State has opposed changing the law for the past decade? He decided that the law should be changed only when he needed an eye-catching announcement for his Labour conference speech in the run-up to the bottled election. Does not that explain why new clause 6 does not change the law at all? Is not Parliament being taken for a patsy when it is asked to debate new clause 6? Should we not pass new clauses 8 and 9 instead, as they will change the law in the way we have sought for the past decade?

Nick Herbert: I am in a dilemma about how generous to be to the Lord Chancellor. Today he has repented of many sins, such as the Government’s repeal of the legislation forbidding strikes in the Prison Service and his opposition to our constant demands that the law in this area be restated. However, my hon. Friend is right to say that the right hon. Gentleman made his party conference pledge precisely because he felt that it would be an eye-catching initiative. I think that he has had great difficulty in persuading his Department that there should be any change in the law to match that pledge.

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We have been here before. Precisely the same thing happened with the previous Prime Minister, Tony Blair, who stood at the Dispatch Box and agreed with us that the law needed to be changed. A few months later, however, after a review had been conducted, he said that we needed only a codification, but by then the signal had been sent out and the press headlines obtained. In fact, no real change was made to the law.

Mr. Straw indicated dissent.

Mr. John Gummer (Suffolk, Coastal) (Con): The Justice Secretary shakes his head in disapproval. Before my hon. Friend is too kind to the right hon. Gentleman, will he agree that two audiences are being addressed? At the Labour party conference, the right hon. Gentleman was addressing the press, whereas today he is talking to his Back Benchers. [Hon. Members: “Where are they?”] If they were here, and as he well knows, they would oppose any change that gave people the right to protect themselves in the circumstances that have been described.

Nick Herbert: I note that Labour Back Benchers are giving the Justice Secretary no protection at all today. He may need greater assistance from them.

Parliament must send a clear and unambiguous signal on these matters, and that is why we have suggested that the wording of the law should be changed so that a degree of force would be permitted, provided it was not “grossly disproportionate”.

David Howarth (Cambridge) (LD): The hon. Gentleman has not mentioned proposed new section (1A)(b) of new clause 8, which uses the phrase

Does he agree that the problem is that that leaves in place the very problem that arose from the Martin case? The central problem with the Court of Appeal judgment was that it said that a mistaken belief that danger was threatened could be judged subjectively, but that the degree of danger had to be assessed objectively, using the criterion of reasonableness. New clause 8 does not deal with that problem at all.

Nick Herbert: The purpose of the phrase

which is used in new clauses 8 and 9, is to make it clear that we believe that there needs to be an objective test. The matter cannot be left to a test that is entirely subjective. No one who has taken part in the House’s deliberations on these matters has suggested that the law should have protected Tony Martin from the consequences of the action that he took. Our new clauses would not do that either, but the Government appear to believe that putting into statute a codification of existing case law will somehow assist people faced with a threat in their homes.

Whether such a codification would be of any use to people in the heat of the moment is open to question. The present Secretary of State for Innovation, Universities and Skills was asked about that in March 2003, and he said:

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That underlines the point that no codification is needed. We have had guidance from the Home Office, but no sort of codification will help people suddenly faced with an attack in their home.

Patrick Mercer: Does my hon. Friend agree that the law is so unambiguous that the Government were forced—three years ago, when the matter came up in deliberations on a private Member’s Bill that I was taking through the House—to issue a wholly risible document that contained illustrations to show how it would work? Now it seems that we need another clarification. Would not the simplest thing be for them to accept new clauses 8 and 9 and use the phrase “grossly disproportionate”? That would clear the whole thing up.

Nick Herbert: I completely agree. What good do the Government think that the proposed clarification will do? Indeed, the Secretary of State did not suggest in his speech to the Labour party conference that there would just be a clarification. He said:

Surely that is a direct admission that the current law is not working, yet he says that he merely wants to restate it.

Mr. Straw: The hon. Gentleman quotes me very accurately, and that is the burden of my position. All hon. Members accept that the number of such cases going to court is tiny, and that there have been only a handful over the past 15 years. The problem that we face has to do with unnecessary and gratuitous investigations at a much earlier stage.

I believe that we need to clarify the law, but that we must choose the best case law, rather than a compendium thereof. Highlighting that case law, as proposed in new clause 6, will be very effective. It will lead to a change in the way the law works, and that is precisely what I was seeking when I made my party conference speech.

I should like to make two other brief points. First, the hon. Member for Arundel and South Downs (Nick Herbert) must be aware that the Joint Committee on Human Rights—one of whose members is a Conservative peer—has said that, in the criminal law, the “grossly disproportionate” use of force is outwith the EU convention on human rights. Secondly, he needs to deal with the very important point raised by the hon. Member for Cambridge (David Howarth). That hon. Gentleman has suggested—rightly, I think—that new clause 8 would give a court less flexibility in defending a victim of crime than would our new clause 6, under which the relevant tests are subjective.

Nick Herbert: First, I believe that the Joint Committee on Human Rights was looking at the Bill introduced by my hon. Friend the Member for North Thanet (Mr. Gale). It contained a different test, and did not use the wording employed in our new clause 8 or in the earlier private Member’s Bill. My hon. Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, has dealt already with the human rights arguments. At the Labour party conference, the Secretary of State wanted to do more than merely suggest that the law
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would just be clarified. His words make it clear that the law would be rebalanced, but that is not happening with this Bill. If merely restating case law would amount to greater protection for householders, engender greater confidence or prevent police from arresting and investigating people when they should not, why has not the existing guidance—which the Government introduced after the last review, instituted by Tony Blair—succeeded in achieving that? The Secretary of State apparently accepted the burden of those arguments just a few months ago, but what he now proposes is simply inadequate to send the clear and unambiguous signal, which the Opposition have consistently requested, to the country as a whole that the law is on their side.

3.30 pm

Mr. Vara: Does my hon. Friend agree that Ian Blair, the present Metropolitan Police Commissioner, got it right when he said on this issue:

Nick Herbert: On that occasion, Sir Ian did get it right and I am grateful to my hon. Friend for reminding us of that.

I refer the House to the Library research paper on the new offence as it was introduced in the private Member’s Bill. It stated:

Therein lies the difference between us. The Government are merely seeking to restate existing law in the belief that somehow that will be of comfort or assistance to people under attack in their own homes. We wish to send the clear and unambiguous signal that the law is on the side of the defendants, and that is why, if we have the opportunity, we wish to press the issue to a Division.

The Secretary of State has not delivered on the promise that he made at the Labour party conference, and it is important that the country understands that.

Mr. Straw: Will the hon. Gentleman deal briefly with the point made by the hon. Member for Cambridge (David Howarth)? Does he not accept that the objective test in new clause 8 is more flexible and more restrictive for a defendant than our subjective test in new clause 6?

Nick Herbert: No, I do not accept that and I am happy to rely on the advice of the Library, which says that the new test is likely to be more generous to defendants. If one uses the words “grossly disproportionate”, an objective test is the right approach.

The Government are now advancing a different argument and suggesting that the Opposition seek a lower level of protection than the one that they propose. That is plainly nonsense.

David Howarth: The hon. Gentleman is confusing two different aspects of the problem. One is the test of reasonableness or disproportion, including the word “gross”; the other is the mistaken beliefs of the defendant, and whether the court accepts them and
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does not investigate them, which is what the Government’s new clause would appear to propose. Or should the court investigate the reasonableness of the beliefs, which is what the Conservatives’ amendment would appear to propose? That is why the Secretary of State is correct in what he says.

Nick Herbert: We think that the balance that we have achieved between the two components of the offence is right, and we are happy with it. I am also happy with the assessment of the Library that our test would be more generous to defendants. The right test is an objective one. I do not think that it is credible that the Liberal Democrats and the Government should rest their opposition to our proposal on the new argument that somehow it would provide less protection than is currently the case under the law. The Library is clear that that is not the case and we have consistently been clear that it is not.

The Secretary of State advanced an entirely different argument earlier, when he said that our provision would somehow be struck down by the human rights legislation. The suggestion was that it would provide protection that was somehow outwith the law, but that argument will not wash. He has been caught out. He undertook a grandstanding exercise at the Labour party conference in search of headlines. It served him well, but he has not subsequently been able to deliver, and we will continue to point that out.

Mr. Heath: I am sorry that the hon. Member for Arundel and South Downs (Nick Herbert) seems incapable of understanding the point made by my hon. Friend the Member for Cambridge (David Howarth); it was not answered by the Library note, which was on a totally different matter.

The Conservatives do, however, have a genuine sense of grievance that the fox of which they have long been in pursuit has been comprehensively shot by the Lord Chancellor. I have been party to the many debates that we have had on the subject, courtesy of the hon. Members for Newark (Patrick Mercer) and for Vale of York (Miss McIntosh) and others, and I have heard the stonewalling from the Government, who said that in no circumstances were they prepared to accept that a change in the law was necessary. For them now to reverse that position takes some brass neck. However, I am prepared to accept that the Lord Chancellor is making the change for the best of reasons.

Let us start with our shared perceptions. All parties have always shared the view that there is a problem with the way in which people in the circumstances that we are discussing are investigated and, occasionally, prosecuted. We also agree that it would be a completely inappropriate interpretation of the law, or of the duties of the police, if a person who had defended themselves, or their family, friends or property, came under suspicion, unless they had behaved entirely improperly in defending what was theirs. There have been too many occasions, although not a great number of them have come before a court, on which people have felt that when they took perfectly proper action to defend themselves against criminal offences, they came under suspicion and were investigated by the investigating
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and prosecuting authorities. They should have been getting the support of those authorities, rather than finding themselves in difficulties with them.

David T.C. Davies (Monmouth) (Con): I am delighted that a Liberal Democrat is taking such a line. If the hon. Gentleman believes that people should have the right to use force when they are being burgled, does he agree that if the intruder is armed with a weapon, the householder should, reasonably, be able to retaliate with some form of weapon?

Mr. Heath: I think that the hon. Gentleman has just explained what proportionality means; I thought that we understood that. I do not know why he is surprised at the line that I take, as I have taken it consistently for 10 years in the House, but perhaps he has not yet had the opportunity to study Hansard with sufficient care.

The Government are reversing from their previous position, and are saying that there is an issue to address. I do not think that the defect lay in the law in the first place. I still believe that, with one exception, which I shall come to, and which concerns the point made by my hon. Friend the Member for Cambridge, the law is perfectly competent to deal with the circumstances that we are discussing; it is, on occasion, the investigating and prosecuting authorities who are incompetent, and who misdirect themselves. I have no objection to restating and reinvigorating the law on that point to prevent mischief from occurring, if that is sensible, and that is the line that I have consistently taken when dealing with private Members’ Bills on the subject.

Mr. Bellingham: The hon. Gentleman is something of an expert on the subject, given his experience with private Members’ Bills. He wants to remove the current prevalence of investigations, and prevent every single case from being taken to court. Surely basing the law on the concept of “grossly disproportionate” will send a strong signal to the police as regards the Association of Chief Police Officers guidelines, and surely that will mean that very few such cases—only the most extreme ones—will go to court. That, surely, is what we are trying to achieve.

Mr. Heath: I am grateful to the hon. Gentleman, but it is a fact that very few such cases go to court. The problem is not the number of cases that go to court; it is the number that are investigated, and the cases in which there is a fear on the part of the householder, or whoever is involved, that they will be prosecuted. That is what is unacceptable in the eyes of Members of all parties.

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