Clause 5 - The offence
Domestic Violence, Crime and Victims Bill [Lords]
3:15 pm
Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)
I accept what the hon. Gentleman says, but we should have that argument at a different point in the proceedings.
At the moment, I am attempting to argue that, although I accept that the proposed new offence would have serious human rights implications, I do not believe that they would be different in the cases of murder and serious harm; exactly the same arguments would apply. Therefore, if the Committee and the House felt at the end of the day that it would be appropriate to have the offence in its present form, there would be no additional argument on human rights grounds as to why the offence should not include serious harm. The argument that to extend the range of offences is somehow to extend the potential for a restriction on human rights is wrong. It is an absolute: either the proposed procedure would disregard human rights or it would not.
The other argument is that ''serious harm'' is too vague a phrase, and too open to construction by the courts. I am not sure that I accept that argument, although I understand the point. I would have no great difficulty in accepting the Government's position if they said that they would home in on a more restrictive interpretation of ''serious harm''—grievous bodily harm is defined, I believe, in the Offences Against the Person Act 1861? Such a position would be perfectly arguable, but justice for the child or the vulnerable person requires that we identify ways of dealing with those who commit the offences but will not own up to them.
The Government lay great store on the idea that this will act as an incentive—the mere fact of the penalty will encourage one or other of the accused to come forward with evidence. That is a serious point, and I hope that the penalty will work in that way. If it does, it will work as effectively for cases of serious harm as for cases in which there is suspicion of murder, manslaughter or unlawful death.
There is a perfectly sound argument for accepting the evidence that the Law Commission so assiduously collected before making its proposals. It has argued its case very carefully, and as I have said, I was impressed by the quality of its argument. It has done a good job of assessing the rights and wrongs of the case.
I am not convinced by the Government's apparent view that one must test the offence in the most serious case—of course, murder is the most serious case—before being able to apply it in any other case. The distinction in the case of serious harm, or the unlawful killing of a child or vulnerable person, is one of extent, not intent.
I shall listen carefully to the Minister's reply. I understand that the Department's view is not closed and that it is open to discussion; indeed, discussions have been going on. Perhaps, therefore, he can explain the Government's position. Are any of the points that have been adduced still under consideration? Is it possible, even at this late stage, to extend the provisions and finish the job? If so, we can resolve an issue that the Law Commission went such a long way towards addressing in its very good report.