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Criminal Justice and Immigration Bill

My Lords, Amendments Nos. 91A and 92A take us back down a somewhat familiar path towards the grossly disproportionate tests for self-defence in respect to householders only. I shall be brief in setting out once more why the Government cannot support such a change. First, these amendments would introduce multiple tests for self-defence. Not only would these tests unfairly favour householders over others using force in self-defence, they would also risk further confusing the issue in the eyes of the public and front-line practitioners. However, the main point of contention on which I would like to focus is the resounding conclusion reached by the Joint Committee on Human Rights in its 15th report. The committee noted therein that, "““any amendment to the Bill to the effect that a person using force against a trespasser would only commit an offence if the degree of force used was ‘grossly disproportionate’ would be objectionable in principle on human rights grounds because it would fail to secure adequate protection of those rights by the criminal law””." It then goes on to say: "““If the criminal law were amended to permit the use of disproportionate force in self-defence or to prevent crime, the UK would be in breach of its obligation to ensure that its criminal law provides adequate protection for the right to life in Article 2””—" of the European Convention— "““and the right to physical integrity in Article 8””—" of the European Convention. These amendments would be likely to give rise to serious human rights concerns, create further confusion through multiple tests and provide for unequal protection for citizens depending on their physical location, as the noble Lord, Lord Neill of Bladen, clearly identified. I cannot see how they are preferable to the provision in the Bill which serves to clarify—not codify—the law. It has been said that, to some extent, the clause fails to follow the current common law, a point made by the noble Lord, Lord Elystan-Morgan. But, with respect, the clause reflects the common law and, to an extent, the Joint Committee on Human Rights concurs in that view. It states in paragraph 1.68 of its 5th report: "““We are satisfied that the new clause clarifies rather than amends the existing law””." Perhaps that is also an answer as to why one is not minded to send this area to the Law Commission. A report by the Law Commission is, of course, extremely helpful where one is considering innovation or alteration. What is not sought here is either innovation or alteration; what is sought is to make clear what the common law is in a statutory form.