My Lords, I entirely agree with the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws. I remember well when
the Criminal Justice and Immigration Act 2008 was going through this House that I was much concerned by Section 76. I have always thought that the piecemeal amendment of the common law by legislation was a mistake unless such amendment was preceded by a report from, in the old days, the Criminal Law Revision Committee or, nowadays, the Law Commission. I suggest that there are two grave disadvantages in the sort of piecemeal amendment we are now asked to perform. First, it deprives the development in the common law of the flexibility that the common law provides as circumstances change. Once you put it in statute it is in statute, and if it is to be changed at all it has to be changed by statute. Secondly, it may often be initiated as the result of a particular campaign—this may be an example of that—without regard to the wider context.
I did not in fact oppose Section 76 when it went through the House because it at least did not in any way seek to change the law on self-defence. That is made amply clear by Section 9 itself. Section 76 was in some ways an odd provision because it refers both in subsection (1) to the test being one of reasonableness and in subsection (6) to the test being one of disproportion—although those two things might be thought to be opposite sides of exactly the same coin. That will not be so from now on because of the addition of the word “grossly” before the word “disproportionate”. For that reason Section 9, which made it clear that the common law was not going to be changed, has now itself been amended to show that, in this respect, the common law is being changed. We are thus now doing exactly what I feared would be the result if we stratified the law as we did in 2008.
What is being done is defended on the basis that it is very difficult for the householder, in the agony of the moment, to make a nice judgment as to what is reasonable or is not. That has always been the law, as my noble and learned friend Lord Woolf has made clear. Speaking from my own experience, I have always stressed that very point. In that respect, this will not change the law but it will, in fact, change the law in the way that I have described. Just as judges have got used to directing juries in accordance with Section 76, they will now have to change tack, which they should not be required to do.