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On Question, Whether the said amendment (No. 91A) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 217.

Division No. 1


Anelay of St Johns, B. [Teller]
Ashcroft, L.
Attlee, E.
Blaker, L.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Browne of Belmont, L.
Buscombe, B.
Byford, B.
Caithness, E.
Carnegy of Lour, B.
Cathcart, E.
Chadlington, L.
Colwyn, L.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Dearing, L.
Denham, L.
Dundee, E.
Eccles of Moulton, B.
Elton, L.
Erroll, E.
Fookes, B.
Fowler, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Hamilton of Epsom, L.
Hanningfield, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Inglewood, L.
Jenkin of Roding, L.
Kilclooney, L.
King of Bridgwater, L.
Kingsland, L.
Laing of Dunphail, L.
Lawson of Blaby, L.
Lindsay, E.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Molyneaux of Killead, L.
Montrose, D.
Morrow, L.
Norton of Louth, L.
O'Cathain, B.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Plumb, L.
Reay, L.
Rees-Mogg, L.
Ryder of Wensum, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Stevens of Ludgate, L.
Stewartby, L.
Strathclyde, L.
Taylor of Holbeach, L.
Thomas of Swynnerton, L.
Tugendhat, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wakeham, L.
Warsi, B.


Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Afshar, B.
Ahmed, L.
Alderdice, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Archer of Sandwell, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.

23 Apr 2008 : Column 1524

Bew, L.
Bilston, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Bradshaw, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Burnett, L.
Butler-Sloss, B.
Carlile of Berriew, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Condon, L.
Corbett of Castle Vale, L.
Cotter, L.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dear, L.
Desai, L.
Dholakia, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falkender, B.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Glasgow, E.
Golding, B.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greengross, B.
Gregson, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Janvrin, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Leitch, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Lipsey, L.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Low of Dalston, L.
McDonagh, B.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Malloch-Brown, L.
Mar, C.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Moonie, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Moser, L.
Neill of Bladen, L.
Newcastle, Bp.
Northover, B.
Palmer, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Rooker, L.
Roper, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Russell-Johnston, L.
Sandberg, L.
Sandwich, E.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.

23 Apr 2008 : Column 1525

Shutt of Greetland, L.
Simon, V.
Slim, V.
Smith of Clifton, L.
Snape, L.
Soley, L.
Steel of Aikwood, L.
Stern, B.
Strabolgi, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Bolton, B.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tope, L.
Tordoff, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler, L.
Uddin, B.
Vadera, B.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Wright of Richmond, L.
Young of Hornsey, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.49 pm

Lord Thomas of Gresford moved Amendment No. 92:

The noble Lord said: My Lords, as I indicated in the debate on the previous amendment, I am in the unusual position of having my criticisms accepted in a government amendment, which vastly improves the clause. Even so, I am seeking to strike it out completely, for all the reasons that I have given. I beg to move.

The Earl of Onslow: My Lords, the noble Lord opposite said that the purpose of the clause is to explain common law and send a message. If he seriously thinks that the general public can read, learn and inwardly digest this clause, he is very much mistaken. It is not to be read by those who sit on the Clapham omnibus, or even by those who sit on the back seat of bankers’ chauffeur-driven cars. It is far too obscure. The law is understood by the judges; therefore do not try to double write things just for the sake of sending a message. With respect, it is very sloppy thinking to try to do so.

Lord Neill of Bladen: My Lords, this time I very much support what the noble Lord said. I shall make four points. If the clause is meant to be a clarification and a teaching clause, it does a pretty bad job. I know that people never like to have their drafting criticised—personally, I hate it. Saying that one has no pride of authorship is not an honest statement.

However, why does the clause not say what the defence of common law is in simple terms, as the noble and learned Lord, Lord Woolf, did in the Martin case? He said in one sentence that:

That is a simple statement. What about property? There is no word in the clause that tells you whether you are allowed to protect property as part of the

23 Apr 2008 : Column 1526

common law. What about the onus of proof? The man in the street on the Clapham omnibus or whatever vehicle he is in might be interested to know that once any reasonable suggestion is put forward that there may be a case of self-defence, it is then a matter for the prosecution. Again I quote the noble and learned Lord, Lord Woolf, who stated:

That is an elementary statement about the law of self-defence that is nowhere to be found in this so-called teaching clause.

Subsection (4) is just playing with words. It is the stuff of Roget’s Thesaurus. It says that what is not reasonable is disproportionate. What is the point of making an amendment like that? I have spoken about subsection (5), which just uses Lord Morris of Borth-y-Gest’s rather flavoured special language and puts it into a statute. Then there is the use of self-induced intoxication in a defence. Why are drugs not mentioned? A lot of people are high on drugs all the time. Can one use that in a defence? Why not deal with this matter properly and send it off to the Law Commission?

Lord Mackay of Clashfern: My Lords, this clause is intended either to alter the law or to be a complete exposition of the law. On the whole, I think that Her Majesty’s judges are in a better position than Parliament to expound the whole law. Another point about the clause is rather dangerous; the common law has flexibility that one cannot have in an Act of Parliament. Is this provision supposed to regulate the common law in this area for the foreseeable future? If so, it deprives judges of a very valuable feature of the common law; namely, that unexpected cases can arise that even Parliament had not anticipated in which to apply the current law in the circumstances.

If clarification is required, I cannot see why the Law Commission is not the authoritative body to provide it. I think that I heard the noble and learned Lord the Advocate-General say that the Association of Chief Police Officers wanted the law to be clarified. If so, there are very good systems for doing that by getting an opinion from someone who understands the present law and states it with the clarity that has apparently, so far, eluded Her Majesty's judges.

The simple result is that confusion is added to the law. I notice that the noble Lord, Lord Thomas of Gresford, mentioned the desirability of having procedures for implementing Law Commission reports. Such a procedure—the Jellicoe procedure—was developed in the 1990s. A considerable number of Law Commission recommendations were put into law and have played an important part in it ever since. I cannot see that it is likely that that procedure will be improved on.

As far as I am concerned, this clause is an extremely damaging incursion into an area that belongs to the courts and the common law.

Baroness Butler-Sloss: My Lords, the wording of the amended Clause 75 will give an overbusy Court of Appeal Criminal Division an enormous amount of

23 Apr 2008 : Column 1527

extra work. Some of this has been mentioned by the noble Lord, Lord Neill of Bladen, but there are other phrases, with which I will not trouble the House, save to say that the Court of Appeal Criminal Division has quite enough to do without having to interpret what the common law has been relatively clear about, which the clause will considerably obscure.

Lord Mayhew of Twysden: My Lords, we were reminded earlier today that this clause takes its origins from a political posture. As has been shown in devastating terms this afternoon, it is a mess. To carry it forward into legislation would be to take a posture to an extent that would be both disproportionate and unreasonable and we should not do it.

Lord Ramsbotham: My Lords, I shall add a small peripheral point, picking up on the remarks of my noble friend Lord Neill. Service law comes into the discussion on this Bill on a number of occasions, so I was extremely relieved to hear his definition of self-defence. Defending yourself or property, or other people whom it is your duty to defend, is precisely the definition that is given to soldiers when they are on duty. It is clear and it is based on the common law. I would hate anything to be done to make it less clear.

Lord Elystan-Morgan: My Lords, I have no doubt at all that the clause as amended by the Government would give wholly the wrong impression with regard to the onus of proof. The government amendment states:

That wording certainly suggests that that is a defence for him to raise rather than a matter for the prosecution to expunge. The fundamental weakness in the original clause is compounded by the amendment. It will do the system and principles of justice no benefit whatever. It is bound to obfuscate the view of a jury on the whole issue of self-defence. On that basis alone, I believe that there is every justification for not proceeding with the clause.

I abjure the temptation to consider the origins of the clause; the heady hustingness of October last year may have had more to do with it than anything else. Be that as it may, I am genuinely concerned that the clause makes the situation less clear. As to not changing the law, I have already addressed the point relating to Gladstone Williams and Beckford. I believe that this does change the law, although that may not have been Her Majesty’s Government’s intention.

Lord Davidson of Glen Clova: My Lords, the amendment is straightforward in that it would simply strike out the clause. However, the Government suggest that, if that were done, it would risk undoing much of the good work that has been done in this House to deal with this area thus far. During the passage of the Bill, there has been considerable interest in the debate surrounding self-defence, which demonstrates that there are serious concerns about whether the current position is appropriate or sustainable. That is possibly an answer

23 Apr 2008 : Column 1528

to the noble Earl, Lord Onslow, when he ventures the notion that no one, outside lawyers, will be particularly interested in this provision. The debate has spread beyond this House.

One has heard fairly extreme legislative proposals, such as the amendments that we have been dealing with on gross disproportionality. Other proposals have sought to refine the government clause in the interests of more accurately reflecting the common law position, which we feel we have now done. However, very few have argued that no legislative action is necessary at all—until, I am bound to say, this afternoon. Indeed, the very fact that the matter keeps coming back—

Lord Thomas of Gresford: My Lords, with the greatest respect, if the noble and learned Lord would like to read my Second Reading speech, that is precisely what I said. This is no surprise.

5 pm

Lord Davidson of Glen Clova: My Lords, I immediately accept that the noble Lord said that. I was trying to suggest that perhaps there has been a rather more forceful approach in following the noble Lord’s argument this afternoon—no more than that. The very fact that the matter keeps coming back before Parliament may suggest that there is room for clarification and reaffirmation, and that is certainly the Government’s intention in proposing this provision.

It is clear that noble Lords have a number of questions in relation to this area. The noble Lord, Lord Neill of Bladen, raises four points setting out how he considers that there is scope, at least, for alteration and improvement. In answer, I would say that one is not seeking to provide an entire code for every area of the common law of self-defence but, rather, to put in place the principal message on how self-defence should be treated. Again, this may be an answer to the noble and learned Lord, Lord Mackay of Clashfern, who said correctly that this is not a complete exposition of the law. It is not intended to be that; it is intended to provide clarification in certain areas. I do not in any way suggest that this is some kind of clarity that has eluded Her Majesty’s judges; rather, it seeks to reflect the clarity that those judges have brought to the law.

It has been suggested before that this may be an area for the Law Commission, and I reiterate the argument that I made then: the Law Commission may be useful for innovation but this is not supposed to be an innovation.

The noble Lord, Lord Elystan-Morgan, suggests that we may be creating the wrong impression of the common law. I repeat the observations that I made earlier in relation to that point.

I submit that it would be at least disappointing were Clause 75 to be lost, given that it has been amended to reflect the learned contributions made during the passage of the Bill. It may be considered that this is the time to address the public’s confusion and that that would reassure front-line practitioners and possibly encourage responsible citizenship.

23 Apr 2008 : Column 1529

Judicial discretion has generally led to sensitive and appropriate rulings when cases are brought to court but the law has a broader role. It needs to be understood and to be more widely accessible than to lawyers alone. This is an area of the law over which sections of the public have strong and continuing concerns that are echoed by some sections of the media. The Government believe that there is genuine confusion about how and when force may be used in self-defence. One should note that senior police representatives accept that this is an issue. In the light of that, the Government believe that this is an opportunity that might be taken to address legitimate concern. Accordingly, I invite the noble Lord to withdraw his amendment.

Lord Neill of Bladen: My Lords, before the noble Lord sits down, perhaps he will respond to this problem. I think he stated that this provision does not deal with the whole law of self-defence but just clarifies a part of it. That sounds a little like the curate’s egg: there is a bad bit, which you try to purify. It is not possible just to pick part of a wide doctrine by way of clarification.

Lord Davidson of Glen Clova: My Lords, I immediately agree that one should not pick and choose, but one seeks to avoid the curate’s egg problem in setting out the fundamental aspects of the common law of self-defence. I say that because one can easily see why statute might not be the area in which to carry out an exposition of the full extent of the common law.

Lord Thomas of Gresford: My Lords, that is the most extraordinary statement I can ever remember hearing. Here is an attempt to codify the common law and we have an admission by the Minister that he is not going to do it in its entirety. He will codify only a major part of the law of self defence, but will leave other aspects, such as the defence of property, the defence of others and the position of the military, and simply rely on the main thrust. If, before the legislation is passed, the public are confused about the law of defence, how much more confused will they be when it has been passed? As the noble and learned Baroness, Lady Butler-Sloss, said, how will the judges cope with this? This matter will exercise the Court of Appeal for a very long time.

There is only one thing to do with this clause: throw it out now. I urge your Lordships to do that. I seek to test the opinion of the House.

5.05 pm

On Question, Whether the said amendment (No. 92) shall be agreed to?

Their Lordships divided: Contents, 98; Not-Contents, 125.

Division No. 2


Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Ampthill, L.
Ashdown of Norton-sub-Hamdon, L.

23 Apr 2008 : Column 1530

Attlee, E.
Avebury, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bradshaw, L.
Browne of Belmont, L.
Burnett, L.
Butler-Sloss, B.
Carlile of Berriew, L.
Carnegy of Lour, B.
Clement-Jones, L.
Condon, L.
Cotter, L.
Craigavon, V.
Dear, L.
Dearing, L.
Dholakia, L.
Dykes, L.
Elystan-Morgan, L.
Falkner of Margravine, B.
Finlay of Llandaff, B.
Glasgow, E.
Goodhart, L.
Harries of Pentregarth, L.
Harris of Richmond, B.
Hooson, L.
Howe of Idlicote, B.
Hylton, L.
Irvine of Lairg, L.
Jay of Ewelme, L.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Listowel, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lyell, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Monson, L.
Morrow, L.
Neill of Bladen, L.
Newcastle, Bp.
Northover, B.
Onslow, E.
Palmer, L.
Ramsbotham, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
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