Criminal Justice and Immigration Bill

I am sorry to add my voice at this stage of the proceedings and I am sorry to have missed, in particular, the debate on Monday on the Conservative amendment. I should now like to say something on the Question whether the clause should stand part. I would not have been in favour of the Conservative amendment for all the reasons given by the noble and learned Lord, Lord Davidson of Glen Clova. To substitute the words ““grossly disproportionate”” for the word ““reasonable”” would, as he said, be wrong in principle. It would tilt the balance too far in favour of the householder without adding anything of clarity to the existing law. Moreover, it would have created a false dichotomy between force used in self-defence and force used in prevention of crime under Section 3 of the Criminal Law Act 1967, where no such distinction exists in reality. On the broader question whether Clause 128 should stand part, I found myself not for the first time in agreement with the approach of the noble Lord, Lord Thomas of Gresford. I can see no good reason to restate the existing law. As far as I know, only two reasons have been suggested. The first is to fulfil the pledge given by the Lord Chancellor at the Labour Party conference. However, it now appears from the letter written by the noble Lord, Lord Hunt, to the noble Lord, Lord Thomas, that the Government have no intention of changing the existing law, so that reason fails. The second reason is to send what is called, "““a clear and unambiguous signal to the owners of homes that the law will be on their side””.—[Official Report, Commons, 9/1/08; col. 351.]" That was the language used by Mr Nick Herbert in the other place. To paraphrase, I would say that it is to get as many votes as possible. The point was put in more graded language by the Minister, as one would perhaps expect. He says that it is necessary to put the existing law on a statutory basis because, "““not everyone””—" a nice understatement, on which I congratulate him— "““has the time or the inclination to research the position across the case law””.—[Official Report, 3/3/08; col. 968.]" He says that we must therefore send out a ““positive message”” to the public at large, which appears to be the intention of Clause 128. Does the noble and learned Lord really believe that the public at large will study Clause 128 in any great detail? Does he really believe that householders up and down the country are waiting anxiously for Clause 128 to become law so that they can know where they stand? If the Government really want to send out a message, I suggest that they cannot do better than repeat the message already sent out by the Crown Prosecution Service and the Association of Chief Police Officers as recently as February 2005. Surely too many messages—assuming that they are ever received by anyone at all, which I doubt—can create only confusion, coming as they do on top of the message sent out by the Lord Chancellor at the Labour Party conference. In any event, the Minister seemed to undercut his own argument on the need to send out the message when he said later in the debate, in answer to a point made by my noble friend Lord Elystan-Morgan that one should have something in the Bill about the burden of proof, that: "““One assumes that the public and the police are fully seized of where the balance lies in these matters””.—[Official Report, 3/3/08; col. 970.]" That is entirely inconsistent with the main basis on which this clause has been put forward: the need to send a message to the public. There is a more fundamental reason for opposing Clause 128 standing part. Some years ago there was a proposal to codify the whole of the English criminal law. A code was prepared by that wise and very learned academic, Professor Sir John Smith, now alas no longer alive. I was in favour of codifying the criminal law on the basis of his proposals, but it came to nothing because the Government did not have the time or the energy. In contrast, what we are getting now and what we are seeing in this and many other clauses is the codifying of little bits of the criminal law—taking little bits of judgments from here and there and giving them statutory force, in some cases, as here, verbatim. That is the worst of all possible worlds. It is almost certain that the little bits now being put on the statute book will be shown to be inconsistent with one another in a very few years. As I have said before, surely it is better not to use politics as the basis of law reform but to rely instead on judges directing juries in accordance with the standard directions of the Judicial Studies Board, a point made by the noble Lord, Lord Thomas, and thereafter relying on the jury to get the right result. The good sense of the jury is a much better defence for householders than anything in Clause 128. If I were a politician, that is the message that I would wish to get across to the public. I hope that between now and the Report stage there can be a measure of agreement between all parties so that the Conservatives will drop the amendment that they have threatened to bring back and the Government will drop this clause.