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5.19 pm

Lord Elystan-Morgan: My Lords, I will confine my remarks to the question of the review being undertaken by Her Majesty's Government with regard to a possible amendment of the law relating to self-defence. I appreciate that no Bill has been published—one would not expect that in anticipation of the review—and that one is somewhat at a disadvantage in dealing with specific detail. But I am comforted by what was said of a reviewer of plays some 100 years ago—if he went to see a play, his review was “tolerable”; if he never saw the play, it was “brilliant”. However, in no way do I regard myself as having anything of brilliance to say on this matter.

It is a matter of essential common sense that the law of self-defence is as perfect a development of the common law as has been achieved by the genius of our forebears and judges. Tinkering with it can raise

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expectations that will never be fulfilled and create division and doubt that do not exist at the moment. I have no doubt that public feeling has been whipped up sedulously by editors of tabloid newspapers and other persons; but I believe that the Government have blown hot and cold on the matter.

Three years ago, there was the well known case of the farmer, Anthony Martin, who, in his home, shot a burglar. There was great furore among people who, in the main, did not attend the courts or have any real experience of the criminal law. The Government quite properly reacted to that and came to the conclusion that it was not necessary for there to be any change of law. The then Prime Minister, Mr Blair, said that the law was sound in this regard. Yet, a couple of months ago, the Justice Secretary Mr Straw said the following at the Labour Party conference on 27 September. I hope that the House will bear with me while I read out this lengthy quotation, because it was obviously carefully thought out and crafted. He said:

What exactly does he mean by,

The law of self-defence has a wide and substantial ambit of protection for the person who defends himself or herself, or defends another person who is unlawfully attacked. There are many misconceptions about this law—the main one being that somehow or other a defence has to be raised by the defendant, once the prosecution has laid its ground. That is, of course, entirely incorrect. It is called the law of self-defence. It is a pity that it was not called the law of self-protection, for that matter, but there is no question of the defendant having to raise a defence and prove innocence on the balance of probability. The onus of proof remains with the prosecution from first to last. It has to satisfy a jury that reasonable self-defence does not exist in that case.

As the House well knows, there are two tests. One is the objective test—whether an invisible bystander might say, “That could not possibly be a situation of self-defence. The force used on one side is so utterly disproportionate to the other”. Then the prosecution would be over the first hurdle. If the jury had a doubt about that, the case would end there. Even if they successfully negotiated the first hurdle, there would still be the subjective test of how the defendant saw events through his own eyes. Indeed, that is very much a part of the law as enunciated over the past 10 years. Smith and Hogan put it succinctly on page 329 of the 11th and current edition when they say that the general principle is that the law approves such force to be used in the circumstances as the accused believed them to be, whether reasonably or not.

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Lord Vinson: My Lords, will the noble Lord allow me to intervene? I am sure that what he says is absolutely right in law, but does he not agree that the public perception is very different? No doubt because of the high profile cases that have occurred, the public perception is that the law is against the defender of his own home. Therefore, it is probably very important that the law is clarified, as Jack Straw has suggested, following the Tory amendment in the House of Commons last summer.

Lord Elystan-Morgan: My Lords, I fully understand the point that the noble Lord makes but how can you clarify it any more than is the case at the moment? It is a simple law; it is well understood by jurors and magistrates; there is nothing metaphysical about it; and I believe that it has stood the test of time. It is the common law developed over many centuries. If an improvement were possible, I should be the first to consider whether we should humbly put our heads together and make that improvement. However, I am as confident as I can be standing here that no such improvement would bring about any beneficial change in the situation. We would be tinkering unnecessarily at a juncture where populism had led us, rather than carefully and objectively analysing the situation.

Therefore, it is in no way strange that there is a strong and distinguished cohort of opinion among judges, barristers and solicitors against tinkering with the current situation, which is perfectly adequate and works well. In fact, in replying to the Justice Secretary’s speech, the Police Federation put it this way:

I think that that says everything.

Therefore, I very much hope that the Government will not seek to find some way or another of bringing this wholly unnecessary amendment to this and the other House. If the law was sound in 2003, what has changed since then? Perhaps on 27 September Mr Straw had imbibed of the heady wine of the hustings and his judgment was somehow affected by that. When I say that, I do not pretend that the fault lies with one side more than the other; many people on both sides of politics are tempted to go in the same direction.

I should not want it to be thought for a moment that I am squeamish in relation to burglary. As a judge, I regarded it, as I do now, as one of the vilest crimes, particularly the burglary of a dwelling house. Any members of a family who have suffered that experience will tell you that very often there is a taint in the house that lasts for ever for the family. Therefore, burglars do not commit offences against property but offences against the person and, with our prisons bursting at the seams, I would never wish them not to receive the condign punishment that they richly deserve.

5.30 pm

Lord Mackenzie of Framwellgate: My Lords, in welcoming the gracious Speech, I start by saying that I totally agree with the noble Lord, Lord Elystan-Morgan. The law on the issue he discussed in relation to self-defence does not need changing. There is a

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fault with the procedures of the police and the Crown Prosecution Service. The outcry is not that the person defending his home has attacked the burglar perhaps a little more heavily than he should; it is often that he has found himself arrested, taken to the police station, interrogated and having to wait for months to appear before a jury. Invariably the jury, using common sense, which the noble and learned Lord mentioned, acquits the person who has been arrested after defending his own home or his person. The law does not need changing; we simply need to try to change the activities of the prosecution authorities, including the police.

To return to my original speech, I joined the Police Service in the 1960s, and I have listened to people saying how much better life was in the old days—whenever that was. Like taxes and death, crime will always be one of the certainties of life. I saw my task as being to reduce the effectiveness of criminals either by preventing offences in the first place, which is the ideal, or by detecting the offender and bringing him to justice, thereby deterring him and others in the future from embarking on a life of crime.

Throughout my service, superimposed on top of the criminal threat was the threat of the IRA terrorist, which was eventually exported to the mainland, and we had outrages in London, Birmingham, Manchester and many other parts of Great Britain. Many people were killed and, indeed, the IRA nearly wiped out the Government in Brighton. In my judgment that was nothing compared to the current threat. We are dealing now with people who brainwash young people and send them into battle in the misguided belief that they are doing good and doing God’s bidding, and if they succeed they will end in paradise. It is a battle of hearts and minds, as has been mentioned.

We heard recently from the head of MI5—not the CIA, which was mentioned by the noble Baroness—that UK children are being groomed for terror by al-Qaeda and that there is a clear determination to continue. Dealing with such a threat is very difficult, as you can imagine. If surveillance is converted into arrest too quickly, a prosecution can fail and the terrorist lives to fight again. If you are too slow, however, you can be too late to stop a tragedy such as we saw in London two years ago.

The Metropolitan Police have an excellent record in keeping London safe. The terrorist, however, has to get lucky only once, but there have been many arrests and convictions and there are still quite a number in the pipeline.

Then, of course, there is the possibility of mistakes, as we saw with the tragic shooting of Mr de Menezes, but we are dealing with decisions that most of us will never face. The notion of applying health and safety laws to an ongoing police firearms operation is as fanciful as applying it to the military on the battlefield. I also deplore the party-political demands on Sir Ian Blair to resign. The police resent being made a party political football, particularly when the judge made it clear in the trial that there was no personal culpability on any of the officers involved. It was a tragic error with great risks being taken by the officers themselves, and we should support the police and security services, not vilify them.

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The measures dealing with counterterrorism in the gracious Speech are to be welcomed in many respects. As I have mentioned, the threat from terrorism is very serious and sustained. It is important that we provide the police with all the tools they need to deal with the threat on our behalf. I do not wish to live in a police state and I am passionate about civil liberties, one of which is the liberty of our citizens not to be blown to smithereens. The threat is becoming increasingly complex with encrypted computer records to be examined, thousands of mobile phone records to be trawled through, scores of suspects to be interrogated, houses to be searched here and abroad, and the rest. Time is therefore of the essence and, in the vast majority of cases, the investigation can be completed in time. There will be circumstances, however, when that will not be possible, and it has been ably illustrated recently by the noble Lord, Lord Carlile of Berriew, the independent reviewer of terrorism legislation, referred to by the Minister. The noble Lord said:

In the event the suspect tragically died, but what if he had not and had recovered on the 27th day? Time would have run out. Obviously, that is an exceptional case but there are others. We are at war and we need to adjust the law, with proper safeguards. Those safeguards are the independent judiciary and I fail to see why its involvement in the process does not provide the reassurance required. The activities at Guantanamo are shameful and do the United States no credit, but that is totally different from what the British Government are proposing by involving the judiciary in the process.

I applaud the fact that the gracious Speech talked of seeking a consensus on detention. For the life of me I cannot understand why the parties do not get round a table and agree on the way forward, as suggested by the noble Lord, Lord Carlile. I know that we are told that the case for longer detention has not been made, but some cases have gone to the wire. Of course, in such circumstances, the police will be forced to charge or release, which either way could result in guilty terrorists being released for want of sufficient time to secure the necessary evidence. The pressure could be reduced by the other related measure in the Queen’s Speech by allowing further questioning after charging.

Baroness Kennedy of The Shaws: My Lords, the noble Lord, Lord Mackenzie, has just posited in a rather extraordinary way the possibility that a man driving a vehicle loaded with explosive material into an airport might have escaped prosecution because he was not interviewed within 28 days. That is the most ludicrous suggestion I ever thought I would hear in this House.

Lord Mackenzie of Framwellgate: My Lords, I welcome the noble Baroness’s intervention. She did not remind the House that I was quoting the noble Lord, Lord Carlile, who is the independent reviewer of terrorist legislation, so I suppose she could apply that description to his Lordship. I shall mention it to him next time I meet him. It wasn’t me but the noble

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Lord, who I heard on the “Today” programme saying those very words. I have great respect for the noble Lord’s views, particularly on terrorist matters.

I mentioned that pressure could be reduced by introducing the business of interviewing after charging. This has always been a problem for police officers as often while the accused is remanded in custody further evidence is discovered. I have changed my view on this. I used to apply the Judges’ Rules religiously as a serving police officer, but it seems to me to be in the interests of everybody that if you discover fairly important new and compelling evidence nine months after a suspect has been charged, it should be put before the accused at an early stage and not left until the trial has started. It is certainly worth considering that, in certain circumstances, it might be in the interests of the accused and of justice to put these matters to the accused, even after he has been charged.

I hope that these issues are not made the subject of party-political wrangling. Consensus and unity strengthens our response to terrorism and we owe that to our citizens. I commend the provisions to the House.

5.39 pm

Lord Forsyth of Drumlean: My Lords, I shall confine my remarks on the gracious Speech to the part which states:

It is always a pleasure to follow the noble Lord, Lord Mackenzie. I was a bit disappointed by his remarks on Sir Ian Blair. The issue has nothing whatever to do with party politics but with the accountability which the gracious Speech refers to as the Government’s policy. When my late noble friend Lord Whitelaw offered to resign because a man was found in the Queen’s bedroom, it was not because anyone thought that he was responsible for that intrusion. Likewise, when my noble friend Lord Carrington resigned over the Falklands invasion, it was in order to demonstrate accountability. Frankly, for a serving police officer to turn to an elected authority and say, “Sack me if you have the power” flies in the face of the words of the gracious Speech.

The Government’s own website sets out in some detail how they see this commitment being met and refers to the Green Paper The Governance of Britain, which was published earlier this year. The Green Paper talks about reinvigorating,

How does that stand with the commitment in the gracious Speech to abandon the Government’s manifesto commitment to allow the people to participate on the new treaty within the European Union—the constitution, as it was previously known? Listening to some of the speeches from the Liberal Democrat Benches, one might be wise to remember that there was a similar commitment from that party. As I am sure all noble Lords have found, everywhere one goes, one sees increasing cynicism about our parliamentary process.

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We have these fine words set out in the gracious Speech, but how will they be backed up by action to reflect their meaning?

The Green Paper also talked about giving,

I was enormously encouraged over the weekend by the number of young people wearing poppies and participating in services around the country. Many of them were interviewed, and one of the things they talked about in the context of sacrifice was freedom. Every gracious Speech—this one is no different—has contained further measures to take away our liberties and freedoms and to increase the powers and intrusions of the state by means of further quangos and further powers given to the authorities. Part of being British is an appreciation of the balanced relationship between the state and the people and that relationship is being seriously undermined, with the best of intentions.

However, I shall concentrate on our constitution and in particular on the consequences of devolution. For the first time in my adult life I fear for the United Kingdom. I look at what is happening in Scotland, where we have a nationalist Administration who daily seem to think up a new wheeze to create the maximum irritation between England and Scotland. The latest proposal is to eliminate prescription charges; the issue of no tuition fees is already well known to many Members of your Lordships’ House. The purpose of such proposals is to increase resentment. I notice that all the notepaper has been changed and the Administration are now referred to as the “Scottish Government”. I even heard His Royal Highness the Prince of Wales talk about the “Scottish Government” the other day. There is no such thing; it is an invention of the Scottish nationalists, and they put it on the notepaper.

When I was Secretary of State, I was taken to task by the noble Lord, Lord Robertson of Port Ellen, because I put the phrase “tartan tax” in a government press release. He went to the Cabinet Secretary and complained about me putting a political phrase in a government press release—this was in the days when the press officers were independent. The press officer told me to take it out. I took it out and apologised. Now it is possible for a devolved Administration to change the “Scottish Executive” to the “Scottish Government”, to reprint all the notepaper and to see the phrase used throughout Scotland. It is deeply worrying not because of the terminology but because of what it tells us about the current agenda in Scotland.

I find what is happening in England, where there is increasing resentment at what they see as an unfair constitutional settlement, even more worrying. This possibility was identified long ago by Tam Dalyell in his book Devolution: The End of Britain?. How prophetic that title may turn out to be.

Unfortunately I had to leave the Chamber and missed the speech of my noble friend Lord Trimble, but I know that he talked about the importance of sorting out this financial settlement. If the Government truly mean what they say—that they want to strengthen the relationship between government, Parliament and

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the people—we must deal with funding. The notes on the Downing Street website say that, by the end of the 2007 comprehensive spending period, the Scottish Executive’s budget will be £30 billion. It was about £14 billion when I was Secretary of State, so that is quite a lot more money. The Government say that it is the result of the fair application of the Barnett formula. However, the Barnett formula is not about increasing expenditure; it was introduced to bring into line Scotland’s advantage relative to England. The formula increases expenditure according to share of population. The point is that the base line is much higher and the world has moved on. The Government must have a comprehensive needs-based assessment for the whole United Kingdom, so that if you live in Wales—or Scotland, Cornwall or the north-east of England—the amount of money you get is fair and is seen to be fair. It is simply not acceptable to have a nationalist minority Administration spending money in a way designed to provoke the disintegration of the United Kingdom.

All of us make mistakes and I have made many. The noble Lord, Lord Robertson, told us that devolution would kill nationalism stone dead, but the effectiveness of that prediction is yet to be demonstrated. We are in mortal danger of the United Kingdom being broken. The nationalists have called for a referendum on independence. Why do the Government not take them at their word? There is no appetite for independence in Scotland or England. However, more years of the current situation and more government failure to address funding issues will create fissures which are wanted by no one but a tiny minority of people in the United Kingdom.

I urge the Government to observe these words in the gracious Speech:

and to do two things. First, let us have fair funding that is seen to be so. Secondly, let the Government take the nationalists’ question on Scotland, hold the referendum and let the Scottish people decide whether they want to be part of the United Kingdom. They will do so. Let us end this nonsense of separatism and division in our country. It is not in the interests of any Scot or any citizen of the United Kingdom.

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