Clause 45 — Meaning of "qualifying trigger"

Bill Presented – in the House of Commons at 6:33 pm on 9th November 2009.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 6:33 pm, 9th November 2009

I beg to move, That this House
disagrees with Lords amendment 55.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

With this it will be convenient to discuss the following: amendment (a) in lieu of Lords amendment 55.

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Photo of David Heath David Heath Shadow Leader of the House of Commons

On a point of order, Mr. Deputy Speaker. We had an unsatisfactory end to the previous debate due to the terms of the programme motion. The amendment in lieu, on which the whole House had expected to vote, could be properly considered only if the Lord Chancellor was prepared to move it from the Dispatch Box. Is it not the case that the same will apply with the forthcoming group of amendments, and that the amendment in lieu cannot be taken if the Minister is still speaking when the knife falls? Would it not be in the interest of proper debate if the Minister sat down before that point, or adopted the same principle of moving the amendment in lieu, so that the House may have a voice on the matter?

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

The hon. Gentleman's assumption is correct. On the previous occasion we got into a difficulty by accident, but we were rescued in a way that satisfied the House, and enabled the vote to take place. That is the position.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The Government cannot accept the amendment passed in the other place to remove the sexual infidelity exclusion in the new partial defence of loss of control. The history of the partial defence of provocation has led to a commonly held belief that this defence can be abused by men who kill their wives out of sexual jealousy- [ Interruption. ]

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. I am sorry to interrupt the Minister. We have moved on to other business, and I must ask hon. Members who do not intend to stay for this debate to leave as quickly and quietly as possible. The noise is quite unfair to the Minister and those who are trying to listen to her.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

Thank you, Mr. Deputy Speaker.

The history of the partial defence of provocation has led to a commonly held belief that this defence can be abused by men who kill their wives out of sexual jealousy or revenge for infidelity. This erodes the confidence of the public in the fairness of the criminal justice system. Even accepting that a great deal has been done in recent years to address this problem, and that pleas of provocation generally do not succeed on the basis of sexual infidelity, it is still true that under current law that defence can be raised and could succeed.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

The hon. Lady will be aware that, only two weeks ago, there was a case in which a jury came to precisely that conclusion under the existing rules and reduced the offence of murder to manslaughter on the ground of sexual infidelity as part of the provocation. Will she identify from where the outcry came, as a result of that difficult decision for the jury, to suggest that it has undermined confidence in the criminal justice system? Why is she suggesting that we should not leave to members of the public sitting on juries the difficult task of making a judgment in these matters? What is the basis on which the Government wish to withdraw that right from the jury?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The hon. and learned Gentleman is right to raise that recent case, but the reality is that there is still an opportunity under existing law for that defence to succeed. The jury in that case decided that it was not appropriate, but it remains possible that a different jury, in different circumstances, might decide that it could succeed.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The hon. Lady will know that, in 2004, the Law Commission published its report "Partial Defences to Murder" and, prior to that, a consultation paper. I am not aware that either document suggested that sexual infidelity should be removed from the classes of conduct capable of amounting to the defence of provocation, should the jury so decide.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The general issue around provocation, and the change of defence, has been accepted by both Houses. The issue here is in respect of sexual infidelity. In respect of the particular case that Mr. Grieve mentioned a moment ago, the jury came to a considered view on the attempted use of the defence of sexual infidelity, but that case also specifically referred to diminished responsibility.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister is slightly misunderstanding my point, and that might be my responsibility. The point that I am making is that the Law Commission did not-either in its final report or in its consultation document-suggest that sexual infidelity should be excluded from the classes of case that were capable of amounting to provocation.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

However, there is now a commonly held belief that cases exist in which that defence has been used successfully. We want to put the matter beyond any doubt.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I still do not understand why the defence should not be used successfully. Why does the Minister wish to deny to a jury the right to make an assessment as to whether the offence should be reduced from murder to manslaughter on the basis of provocation? In virtually every other area, it will be allowed to make that decision, but apparently not in the case of sexual infidelity. What has the Minister got into her head that is making her want to withdraw that historic right from a jury?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

Frankly, we do not think that it is appropriate, in this day and age, for a man to be able to say that he killed his wife as a result of sexual infidelity. That is essentially the reason. If other factors come into play, the court will of course have an opportunity to consider them, but it will not be able to make the decision exclusively on the ground of sexual infidelity. The sexual infidelity exclusion applies in relation to the words and conduct limb of the new partial defence to murder of loss of control.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

Let us just take a quick example. A woman is abused by her husband over a long period, at the end of which they are reconciled. He says that he will moderate his behaviour and promises to be faithful to her in future. She comes home the following weekend to find him in flagrante with his lover. He tells her that the marriage is now at end, and she kills him. How is the jury going to be invited to disentangle the elements that went into causing that act? How is it supposed to disentangle the abuse, which it will be entitled to take into account, from the sexual infidelity, which the Minister now tells us that the Government, in their wisdom, have decided to deny it the opportunity to consider?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The court may of course take into account whether there has been abuse, as well as other factors, but it will not be able to take into account a set of circumstances in which the defendant kills someone in an attempt to punish them or carry out some form of revenge purely as a result of sexual infidelity. I am really quite surprised that the hon. and learned Gentleman thinks that it is acceptable, in this day and age, for someone to use the partial defence that sexual infidelity is an acceptable reason for killing.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

This is not just my view. Perhaps the Minister would like to be candid with the House about what the Law Commission was advising the Government, even up to a few weeks ago, on the coherence of their proposals. My understanding is that the Government have received the clearest, most unequivocal advice from the Law Commission that this particular proposal-which was never in the commission's proposals-is nonsense.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The Law Commission has said that such cases should not be left to the jury. Perhaps the hon. and learned Gentleman would like to refer to page 65, paragraph 3.143. Now perhaps I can move on-

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

It is on page 65, paragraph 3.143. I am happy to take further interventions as I proceed through my speech, which will perhaps give the right hon. and learned Gentleman an opportunity to consider the report.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

The Minister knows that the Law Commission's original proposals were cherry-picked by the Government. They decided not to adopt the commission's proposals for the categories of murder 1 and murder 2. I say again to the Minister that my understanding is that, at a meeting that took place-certainly not under Chatham House rules-between the Government, their advisers and the Opposition in the Lords, the representative of the Law Commission publicly urged the Government to desist from this course of action.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

Perhaps I can refer to page 65 of the Law Commission report. It states:

"In Smith (Morgan), Lord Hoffmann, agreeing with the decision, said:

Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover."

That, I think, provides some support across a number of areas.

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Several hon. Members:

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I will take some more interventions in a few moments, but I want to proceed a little further.

The sexual infidelity exclusion applies in relation to the words and conduct limb of the new partial defence to murder of loss of control. For that limb of the partial defence to succeed, the defendant must persuade the jury of the following: that he or she killed, or was a party to killing another as a result of losing their self-control; that this loss of self-control was triggered by a thing or things done or said-or perhaps both-that, first, constituted circumstances of an extremely grave character and, secondly, caused them to have a justifiable sense of being seriously wronged. Finally, the defendant must show that a person of their sex and age with a normal degree of tolerance and self-restraint and in their circumstances might have reacted in the same or in a similar way to the defendant.

This is a purposely high threshold designed to narrow the circumstances in which a partial defence to murder can be made out based on anger. However, in order to put the matter beyond any doubt, the Bill as introduced in this House also made specific provision that in assessing whether the things said or done constituted a trigger for loss of self-control, the fact that a thing done or said constituted sexual infidelity is to be disregarded by the jury.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald 7:00 pm, 9th November 2009

I am grateful to the hon. Lady who has given way very generously. I am not a lawyer, so perhaps we can put this into terms that a layman can understand. The difference between murder and manslaughter is essentially the difference between premeditation and instantaneous reaction. If a man or woman comes home and finds her spouse in flagrante and loses control on the spot-not having premeditated finding such a thing-and hits the spouse over the head with a saucepan, which, instead of merely silencing, kills that spouse, most rational people would say that that was manslaughter, not murder. If we are completely to disregard the sexual infidelity in that situation, it removes a defence that would be reasonable in all other circumstances.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I think that a very important principle is at stake here: whether or not this House believes-it has already put its views on this matter on the record-that when a person commits sexual infidelity they in some sense bring upon their own death at the hands of their partner, husband or wife. That surely cannot be the way in which we should proceed. The reality is that in many court cases, it was decided that that was not an appropriate partial defence, so we wish to make it absolutely clear in the Bill that it cannot be a partial defence in those circumstances.

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Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

May I tell the Minister about a case I was involved in not so long ago? A person was bragging about having had relations with a man's wife. The man who was offended went out, bought a knife and stabbed the other person to death. Would the person using the knife have a defence or not? The man killed had said that he had been with the man's wife and various rude things, so would the new defence be open to the individual who killed the man immediately with the knife?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I do not think it is a matter for me to set out the circumstances; it would depend on the context, which is what the court would have to consider. We are simply saying that sexual infidelity in itself cannot and should not be an acceptable reason for a defence for murder.

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Photo of Anne Main Anne Main Conservative, St Albans

Does not the Minister accept that the sexual bond between two people gives them a greater closeness and involvement than with any other people in their lives, which is why people would use this as a plea-because the betrayal is so much greater and the anger may be so much more than in any other situation?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I do not for a moment deny that passions will be incredibly high when such personal relationships are under pressure in the circumstances that many Members are describing, but surely the hon. Lady would agree that this House and our legislation should not say that dealing with such matters in such a violent way is acceptable. It is not and cannot be acceptable-and we want to make it perfectly clear in the legislation that it is unacceptable.

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Photo of David Winnick David Winnick Labour, Walsall North

At a time when we are very concerned about so-called "honour killings", which in no way involve honour, is it not very important that this House should send out a perfectly clear message, as my hon. Friend has said, that sexual infidelity can never be an excuse-no matter what the links in a marriage or partnership, as described by Anne Main-for what is, after all, murder?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I certainly agree with my hon. Friend. Of course we do not believe that fidelity, however desirable, is appropriately or effectively championed by treating the victims of infidelity, who go on to kill their unfaithful partner, more leniently. That is essentially the issue.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I shall give way for the very last time, as I need to make some progress.

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Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I am grateful. May I bring the Minister back to the wording of the Bill? Surely the difficulty here is not that we are asking for new law that would make sexual infidelity of itself and solely a qualifying trigger in this context; rather, the problem is that the Bill provides that a thing done or said that constitutes sexual infidelity is to be disregarded. The Minister would be right if the Bill set this out as solely sufficient for a qualifying trigger, but it does not; surely what is unrealistic is, as my hon. and learned Friend Mr. Grieve said, that the jury is being invited to take no notice at all of something that must count as relevant circumstances.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

We need to look at the reality and at what we believe is acceptable. I have to say again that it cannot be acceptable for a man, for example, who finds his wife in a state with her lover and decides to kill her to use the fact of her sexual infidelity as a partial defence. That is not an acceptable way for our legislation to proceed.

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Several hon. Members:

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I want to make some progress and deal with a couple of other issues that have been raised in the debate.

The core argument against this provision, as put forward in the other place, centred on the notion that the Government were not prepared to trust the common sense of the jury. I believe that that is essentially the argument put by the hon. and learned Member for Beaconsfield. That argument is simply misplaced. The provision does not reflect a lack of trust in the jury; what it does reflect is the Government's determination to ensure that the law in this matter keeps pace with the times. In this day and age, it should not be possible for any person, regardless of gender or sexuality, to stand up in court and blame their partner-let us not forget that it is the partner that they themselves have killed-for having brought on their own death by having had an affair.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I am going to make some progress; I will come back to the hon. and learned Gentleman.

In modernising the law in this matter, we have purposely set a very high threshold for the circumstances in which killing in anger could ever be treated as manslaughter rather than murder. The words and conduct limb of the partial defence is the main plank for achieving this, but we also believe that in relation to sexual infidelity, it is important to set out the position precisely and uncompromisingly-namely that sexual infidelity is not the kind of thing done that is ever sufficient on its own to found a successful plea of loss of control so as to reduce the verdict from murder to manslaughter.

I want to express one or two concerns about the amendment in lieu proposed by David Howarth. There may not be sufficient time at the end of the debate-I hope there will be-so I will say a few words about it now. I think I should be grateful to the hon. Gentleman for an amendment in which I believe he is trying to find an alternative form of words to achieve the Government's purposes in clause 45. However, the way in which the amendment is drafted is unacceptable, for two reasons. First, the amendment restricts the possible motives to three: punishment, sexual jealousy, or sexual envy. Therefore, in cases where sexual infidelity is involved, if the defendant argued that the action he or she took was due not to one of those motives, but to betrayal, breach of honour, or outrage to morality or decency, they could rely on the partial defence. Therefore, if the intention behind the hon. Gentleman's amendment is what I would hope it to be, it has a loophole.

Secondly, the terms of the amendment are drafted too widely: punishing a person for any act perceived as sexual infidelity would not qualify for the partial defence. The Government's amendment would ensure that a partial defence could be used, for example, in the extremely grave circumstances in which a woman killed her husband after she came home and found him raping her child. However, under the hon. Gentleman's amendment, if the act was perceived as sexual infidelity, even though that might not have been the main consideration in the loss of control, its existence would exclude reliance on the partial defence.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Under my amendment, all such issues would be for the jury to decide. I find it difficult to believe that the jury would find in the direction that the Minister suggests.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The hon. Gentleman would therefore leave in some doubt whether there were circumstances in which sexual infidelity would be acceptable as a defence for murder.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

The Minister cannot have it both ways. First she says that my amendment catches more cases of sexual infidelity, and now she claims that it catches too few. I wish the Government would make up their mind.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

That is not what I am saying. There are circumstances-the prime example is of a wife seeing her husband having sex with their child or a stepchild-in which sexual infidelity has taken place, but that would not be the primary issue on which the defence would, or could, rely under our legislation. They would rely on the extremely grave set of circumstances of the abuse of that child.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

But that is the whole point of the words,

"where D acted principally out of".

The Minister's example does not work.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The example does work, because the hon. Gentleman's amendment would still allow sexual infidelity to be used as a partial defence. [Interruption.] Having looked at the matter carefully, I am afraid that that is the case. Under the amendment as drafted, the moment that a person perceived that sexual infidelity had taken place-as they would if they saw their husband have sex with their child-they would rely on that defence. That would not be an acceptable defence, but there would be an acceptable defence on the grounds of those extremely grave circumstances of sex with a child.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

I thank the hon. Lady for generously giving way to me a second time.

I doubt that I am the only Member who is getting very confused. The hon. Lady appears to be saying that sexual infidelity can never be a reason for pleading provocation to murder. We all accept that, but that is also the case with all the other reasons why people might plead provocation. The fact that somebody comes home drunk seven days a week is not a good enough reason to kill them, but we know that sometimes that can happen. What is unique about sexual infidelity that it must be removed from the almost endless list of circumstances in which somebody might be provoked?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 7:15 pm, 9th November 2009

The circumstances are quite different. Perhaps the right hon. Lady is suggesting that when somebody sees their husband or wife having an affair, that would be a partial defence for committing extreme violence-killing somebody. The right hon. Lady is clearly not in a position to be convinced, but the Government are clear that that cannot be an acceptable partial defence. Although many juries might disagree, there have been examples in the past in which a court has considered that sexual infidelity was a sufficient provocation to allow murder to be reduced to manslaughter. That is unacceptable.

I have been on my feet for nearly half an hour, and I want to ensure that hon. Members have an opportunity to speak in the debate. If the right hon. Lady has more to say, she will be able to do so if I finish my speech quickly. I hope that the hon. Member for Cambridge will see the flaws in his amendment, in relation to restricting and disregarding sexual infidelity as a partial defence. However, I look forward to listening to his argument for his amendment.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. The hon. Lady will have to wait a little longer, because I call Mr. Dominic Grieve.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

Thank you, Mr. Deputy Speaker.

The first problem is that this is the first opportunity that we have had to consider the matter on the Floor of the House. It is a scandal that our procedures are so rotten, hopeless and archaic that, despite the Government's so-called modernisation, we were deprived of giving the matter any scrutiny before it went to the other place. From that, in my judgment, stems a great deal of the difficulty that we are experiencing.

The second problem is that the Minister's arguments this evening are utterly incoherent. Having practised in the courts, I am the first to accept that the vast majority of the partial defences advanced to the wicked act of killing another human being are largely untenable. Every day of the week in our courts, those arguments are trotted out and correctly rejected by juries. I have never been left in any doubt that juries are able to make up their own minds as to what reasonably constitutes the partial defence that may reduce murder to manslaughter on the grounds of provocation, and they have to do it all the time.

For reasons that I find most peculiar, the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour. The Minister decided to pick some examples, but in doing so she started to undermine her case very quickly. Most reasonable people might have no difficulty concluding that the fact that one's partner is sexually unfaithful would not in itself constitute a ground on which anybody should raise a finger against them. However, human nature, and the nature of sexual relationships, shows that, unfortunately, that happens very frequently. Juries have to apply their mind to that, and in my experience they will tend very quickly to put things in different categories. They will take account of the circumstances in order to establish the extent to which a person has been deceived, the extent to which a person has been treated badly, or the extent to which general tenets relating to the reasonable humane behaviour that we owe each other have been violated.

The Minister said that if someone came home and found his or her partner was being sexually unfaithful with a child, that would not matter. What about the circumstances in which someone came home and found that his or her partner was being sexually unfaithful with a sibling, or a parent? Those things could happen, but they would not constitute a breach of the criminal law, unlike the Minister's example involving a child. I suggest to the Minister that all those examples are of a kind that might lead a jury, particularly if there are other circumstances that merit consideration, to - [Interruption.] The Minister says that that would be incest, but if a sibling were involved and both parties were adults, there would be no breach of the criminal law.

I have no idea whether the Minister has brothers or sisters, but it seems to me that if the Minister turned up and found that the person with whom she was currently having a sexual relationship-her partner-was having a sexual relationship with a close relative, a court would be entitled to take that factor into account. In such circumstances, it would be an aggravating feature because of the breach of trust. [Interruption.] I am sorry if the Minister does not understand what I am saying, but I think that I have made myself fairly clear. [Interruption.] Incest would be a different issue altogether. [Interruption.] The trouble is that the Minister did not listen to what I said. I was referring to circumstances in which someone is not only sexually unfaithful to his or her partner but sexually unfaithful within the context of that partner's wider family, including close relatives. That can happen without any breach of the criminal law. [Interruption.] I fear that if the Minister has not understood that by now, even an attempt by me to explain it behind the Speaker's Chair will probably be unsuccessful.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. I am sorry to interrupt the hon. and learned Gentleman, but I feel that I ought to intervene on behalf of the Official Reporters. The introduction of matters by Members from a sedentary position may make it much more difficult for them to produce a reliable account of our proceedings.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

The Minister said, from a sedentary position, that I was not referring to the defendant. Of course I was referring to the defendant. The defendant is the person who has put the defence forward, and if the Minister has not understood that, it is beyond my comprehension.

Let me move on. The point at issue is this: why should the jury be deprived of the opportunity to take that factor into account? All I can say to the Minister is that it seems to me that the Government's argument is entirely incoherent. They wish to issue a statement, but I think that in doing so they risk grave injustice in a very small minority of cases.

The second issue that the Minister has not been able to address properly is how a judge will direct a jury in cases in which sexual infidelity is one component of the story, but other components are also involved. How, logically, will juries be able to disregard the sexual infidelity component? It beggars belief that the Minister thinks that that will be easy.

When I intervened on the Minister, I gave an example which I think is worth repeating. One of the good things that the Government have done in the Bill is to enable people who have been battered and abused for many years to advance the partial defence, even in circumstances in which currently they have been prevented from doing so because they did not act in the immediacy of the violence meted out to them. I welcome that-I think it is an important development-but, as I said to the Minister, there will be cases in which the final trigger is the discovery of sexual infidelity in that context. It is beyond my understanding how a jury will be properly directed to put that issue out of their minds, but will be allowed to consider the other issues.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

What my hon. and learned Friend has said is, in fact, the considered view of the Law Commission, which eventually decided not to impose the formulae advocated by the Minister, but to leave it to the good sense of the judge to determine what could properly be left to the jury.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I am grateful to my right hon. and learned Friend. Listening to the Minister, I began to think that I must have completely misread the Law Commission's report-yet that is what she told us, and I must tell her that that does not raise my level of confidence that she actually knows what she is talking about.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

Perhaps I can enlighten the hon. and learned Gentleman. Section 3.144 of the Law Commission's report, on page 65, states:

"Under our approach provocation should not be left to the jury in such a case because we do not see how any reasonable jury, properly directed, could conclude there had been gross provocation or that a person of ordinary tolerance and self-restraint might have acted in the same way as the defendant."

Perhaps the hon. and learned Gentleman would like to look at the report in a little more detail.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

It is the Minister who is being selective. If she turns the page, she will see the precise exceptions-in sections 3.146 to 3.150-which appear to me to undermine everything that she has said. Section 3.150 states:

"Our approach has been to seek to set out broad principles, to rely on the judge to exercise a judgement whether a reasonable jury could regard the case as falling within those principles and then to rely on the jury to exercise its good sense and fairness in applying them."

Further up the page, the report provides the precise examples that I cited to the Minister.

Let me return to a point that I made earlier. These are the Law Commission's original proposals. Since then, the Government have cherry-picked those proposals. I understand why they have done so, but, as the Law Commission has made plain, the coherence of its proposals has been entirely undermined by their action. That constitutes a major problem in the way in which the Government have approached the legislation. I think I am correct in saying that for those reasons the Law Commission has indicated to the Government-and the Minister has not answered my questions since then during the passage of the Bill-that it believes that the decision should be left to the jury.

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Photo of David Winnick David Winnick Labour, Walsall North

Even if the hon. and learned Gentleman does not accept the Government's view, there are pretty good arguments on both sides, but given the violence that is perpetrated against women and given that far more women than men are murdered as a result of affairs and sexual infidelity, would it not be right-I speak as a layman, not a lawyer-for the House to convey the message that sexual infidelity must not lead to a manslaughter charge, because it constitutes outright murder? After all, we convey messages on all kinds of issues. That would strengthen the opinion held by so many of us that women should be protected against violence and, obviously, should be protected first and foremost against being murdered.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. I realise that the hon. Gentleman has some knowledge of these matters to contribute to the debate, but that was a very long intervention and we have a limited amount of time left.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I am grateful to Mr. Winnick, but I wish to bring my speech to a close.

I certainly do not wish to see circumstances in which the House provides an excuse for men to kill women simply because they perceive that the women have been unfaithful to them-or, for that matter, vice versa: I do not want to see women killing men. On that I am sure we can all agree. That, however, does not justify the remarkable step that the Government will take if they decide that this is one of the components that can be entirely disregarded by a jury when it comes to consider the plea of provocation and the partial defence. I simply do not understand the logic.

History suggests-certainly, the cases that I have seen suggest-that although on occasion the defence may be advanced as a mere cover for the violence of one party to another, sexual infidelity is sometimes an important and relevant component of the cocktail of events that combine to make a reasonable person snap. For those reasons, I think it is very dangerous for this House to deprive juries of the opportunity to use their good sense to evaluate that evidence, but I am afraid that that is what the Government have chosen to try to do, and I do not understand the rationale behind that. I am very wary of legislating in a symbolic fashion. Juries are entitled to consider these points and, in my experience, if we allow them to do so, they will come up with the right answers. For those reasons, the Lords amendment deserves to be supported.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 7:30 pm, 9th November 2009

First, I agree with what Mr. Grieve said about this being the first time that the Bill's murder provisions have been considered on the Floor of the House. It is extraordinary that the business was arranged in such a way that we could not discuss these and many other important issues about the law of murder.

I also associate myself with the hon. and learned Gentleman's remarks on what has happened in respect of the Law Commission. It was given a very narrow remit in the first place, in that it was not allowed to consider the question of a mandatory life sentence for murder; it then produced the best possible report it could in the circumstances-even though it might not have been what it wanted to do had it been left to its own devices-and then the Government cherry-picked even that. I must say that it is hardly convincing for Members on either side of the debate to cite what the Law Commission said in its reports, as I do not think they reflect in any way what it thinks.

There are three different kinds of reason on offer in this House and the other place in favour of dropping the sexual infidelity provision the Government originally proposed-clause 45(6)(c). I want to make it clear from the start that I do not agree with the major reason given today, which was implicit in what the Lords said, which is that somehow it is all right for men to use sexual infidelity as an excuse for murder. That is unacceptable. However, two other reasons were on offer, and I shall need to talk about them as well.

Some Members have rightly said that it is a matter of fact that there are cases when men especially-although this can happen the other way around-kill in a rage about sexual infidelity. The issue is not whether that is a fact, but whether it is an excuse; it is a question of value, not of fact. On the question of value, I am entirely with the Government. I do not agree that that is a proper reason to offer in defence against a charge of murder, especially given that a charge of murder is one where there is a requisite intention to kill. The defendant is therefore saying, "Yes, I did have that intent. I had all the requisite intention to murder, so it was not that I did not know what I was doing. I did know what I was doing, but the action arose out of these circumstances." That is an unacceptable excuse.

I have slightly more sympathy with the second reason raised both here and in the other place, which has to do with the jury. I think the jury does have a place in these cases. I do not think the Government have excluded the jury in the current version of the clause in question either, because they do not say that the judge shall tell the jury how to decide any case where there is sexual infidelity. They simply say that the sexual infidelity is to be disregarded. To whom is that clause addressed? The Government are not entirely clear about that.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Are the Government not saying that the judge must direct the jury that it must disregard questions of sexual infidelity?

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Precisely, but there is still the judge saying those words to the jury, and it is for the jury to decide what they mean in a particular case. Therefore, even the Government have not succeeded in taking the case entirely away from the jury. What does "disregard" mean? It is for the jury to make that assessment.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

There is a point that I should perhaps have made. Ironically, I actually think the impact of these proposals on juries will probably be minimal. I think it will be very easy for a jury to disregard a judge's direction in this regard if that jury happens to disagree with it, because that direction will usually be merged with other issues that fall to be considered, and it will therefore be impossible to disentangle how the jury arrived at its decision.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

One of the most important aspects of the jury system is that the jury gives no reasons, so we never know the answer to such questions.

I agree with the Government that there is no reason in principle why the legislature should not set the criminal law. It is for Parliament to say what the law should be, and Parliament is perfectly entitled to say that certain excuses should not count. That in itself is not an argument against the Government's position.

Members seem to have missed the point that this part of the Bill already includes another substantive restriction on what can count as a justifiable lack of control. It is contained in clause 44(4), which says that the loss of control defence does not apply where the defendant

"acted in a considered desire for revenge."

Revenge is therefore also excluded in the same way. Perhaps a jury will think otherwise, and consider that there should have been such a defence in the circumstances before it. No one has yet complained that that provision should be removed simply because it interferes with the rights of the jury. I am not entirely convinced by the jury point, therefore. The Government are entitled to propose changes in the substantive law, as long as they admit that in the end these questions of fact will, even in their own version, be decided by a jury.

The third reason was more persuasive. It has been alluded to here, but it was discussed at great length in the other place. It takes us back to the evidence the Law Commission gave to the Public Bill Committee. It is the argument that the drafting of clause 45(6)(c) was defective-or, to borrow a word used by one commissioner, "bizarre". That clause said:

"In determining whether a loss of self control had a qualifying trigger...the fact that a thing done or said constituted sexual infidelity is to be disregarded."

There is an enormous number of things wrong with that formulation. We do not have time to go through them all, but the first thing that is not at all clear is whether it does the job the Government want it to. What is to be disregarded? Is it sexual infidelity? No, the clause does not actually say that. It is merely the fact that something

"done or said constituted sexual infidelity".

In other words, the infidelity itself is not to be disregarded, but merely the mental process going through the head of somebody else, who comes to the conclusion that something constitutes sexual infidelity-that is what is to be disregarded. It is not clear that that is what the Government wanted. Secondly, how can a thing that is said constitute sexual infidelity? What words constitute sexual infidelity? I cannot see how that works.

Thirdly, what counts as sexual infidelity anyway? The Minister's examples show the problem is a difficult one to resolve. She put forward lots of examples of what she claimed was sexual infidelity, although it is not clear whether a jury would agree. What about unmarried couples? What about situations in which the couple disagree about the degree of fidelity that is expected in their relationship? This takes us back to the point the law commissioners made, which is that presumably what the Government meant was something like sexual jealousy or envy, rather than infidelity as such. There are other ways of drafting the clause that get out of at least some of these problems. I do not say that the amendment we offer solves all the problems, but I think it solves at least some of them.

On Report, had we been allowed to debate it, we would have offered an even more comprehensive solution that would have separated out the various problems in this entirely unsatisfactory area of the law. One area in which the Bill fails is that it does not distinguish between loss of control through anger and cases of long-term violence where people-especially women-fear repetition of the violence. Those are entirely different cases. The second sort of case is not really about loss of control at all, and should be subject to a separate defence. None of our proposals were discussed, and it is not possible at this stage to rewrite the whole of the murder provisions-although if that were possible, it should have been done.

It is possible, however, to offer a cut down version of what we offered on Report, by way of amendment (a). That amendment deliberately ties the issue of sexual infidelity to a specific part of the trigger provisions, namely that the circumstances should be

"of an extremely grave character".

It ties it down to how the Bill works, rather than being at large which is how the current drafting works. It avoids the "constitute" problem by concentrating not on the thought processes of the court, but on the actions and intentions, or reasons for action, of the defendant. We hope that it adds more comprehensibility to the sexual infidelity language by referring to "sexual jealousy", which is slightly clearer.

The Minister said that what was wrong with our amendment was that there were circumstances in which the defendant might "perceive"-she used the language of the amendment-that what was going on was sexual infidelity whereas, in reality, it was not, or someone else might think that it was not. That ignores, first, that this is a jury question in the end-that cannot be got away from; this is criminal law, so the jury decides this kind of issue. It also ignores the fact that the amendment starts with the words

"where D acted principally out of a desire".

The key phrase is "acted principally". The jury decides whether someone acted principally out of the various matters referred to in the amendment. The Minister's problem with the subjective nature of "perceived" does not arise unless the jury thinks that that is the principal reason. No reasonable jury could possible believe that in the circumstances she put forward the principal reason for the action of the killer was sexual infidelity-even the perception of it.

The objections that the Minister raised do not work. I simply add that whatever the problems with our drafting, they are as nothing compared with the problems in the Government's drafting. Faced with a choice between something slightly imperfect and something plainly bizarre, we should choose the slightly imperfect. Thus, if circumstances arise in which it is possible to vote on amendment (a), I request that we do so.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I think that my right hon. and hon. Friends wish to contribute to the debate, as perhaps do some Labour Members, so I shall be brief and compress my remarks to something shorter than I originally had in mind.

The law of provocation has always been one of the most difficult aspects of the law of homicide, and over the years it has given rise to a great deal of judicial comment and controversy. Broadly speaking, the recommendations of the Law Commission, which are encompassed in this Bill, are to be welcomed, but there is one exception: the proposal to exclude from the triggering event the conduct entitled "sexual infidelity". I am very much with my hon. and learned Friend Mr. Grieve, who speaks from the Front Bench, in believing that this is essentially a matter for a jury.

Perhaps the House will forgive me if I recount a case that I dealt with some three or four years ago-I was acting for the defendant, who was charged with murder. He was impotent, and he often tried to have sexual relations with his wife and failed because of his impotence. The wife then developed a long-standing sexual relationship with a lover, and that was known to my client. There was then an occasion when my client tried to have sexual intercourse with his wife, but because he was impotent he could not achieve that, at which point the wife began to abuse him, laugh at him and say that he was not a patch on the lover. My client lost self-control and strangled his wife.

Within that cocktail of events, the sexual infidelity of the wife played a prominent part, but if we are to accept the Government's position, that sexual infidelity would have to be disregarded. I see absolutely no justice in providing in statute law that what was clearly, on the face of it, a relevant fact should be disregarded. My client was convicted of murder-that is to say, the jury in that case determined that the conduct did not amount to provocation within the meaning of the law, and he was convicted of murder. I was very unhappy about that verdict, but that is a wholly different matter. What the case shows is that a jury is perfectly capable of addressing this issue and taking a broad view of what is just.

The Minister has said that her views were in accord with those of the Law Commission, but that is not so. What is correct is that the Law Commission said in its report that male possessiveness and jealousy should not, of themselves, constitute good cause. It relied, perfectly understandably, on the judgment of Lord Hoffmann in the very important case of Smith (Morgan), when he commented on the Australian case of Stingel. If the Minister were to read further on in the report, to the following page-this is the point to which my hon. and learned Friend the Member for Beaconsfield was drawing attention-she would see that it makes it clear that where additional material comes into play-for example, taunting somebody about their impotence-it is right that consideration of that combination of events should be left to the jury.

That is why the Law Commission, in its considered view, held against the Minister's position of excluding a particular category of event from the triggering events. If she would be good enough-I am sure she will-to examine paragraph 3.168 on page 70, where its detailed recommendations for inclusion in statute law are set out, she will not find a recommendation that sexual infidelity should be excluded from the triggering categories. She will not find it, because that was not the Law Commission's view. Its view-it happens to be my view, too-is that these are matters best left to the jury. Very often, the jury will decide that the conduct does not amount to provocation, as in the case I told this House about, but sometimes it will decide that it does. If we exclude that fact from the jury's ability to take account of the matter, we bring about a profound injustice. I believe that the views expressed in the other place are wholly right and that this provision has been added-probably at the suggestion of the Solicitor-General, who is no longer in her place-out of a desire to be politically right. I do not think it just and this House should not go along with it.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald 7:45 pm, 9th November 2009

What I have been totally unconvinced about tonight is why this particular motivation and provocation should uniquely be removed from a jury's discretion in deciding whether or not it was, in the circumstances rehearsed, an understandable ground for somebody losing control. The Minister has said that sexual infidelity cannot be, on its own, a cause for killing, and we would all agree with that. However, the whole point about loss of control is that the person does not make a rational assessment at the time of what he is doing and does not necessarily intend to kill, but is provoked into making an attack. On that basis, just about every single reason for losing control would have to be taken away from a jury's discretion. The Minister has not shown that there is some factor in this one cause of loss of control that justifies its uniquely being taken away from a jury's discretion.

It is no reason to kill somebody if they get drunk, but let us consider a situation where a man comes home night after night as drunk as an owl. If his wife says to him "Don't do it again" and then moves towards him, pushes him in her fury at his being drunk as an owl and he falls over, hits his head and dies, she will say, "Of course it was not a good enough reason, but I lost control." Why somebody-it could be a man or a woman; it does not have only to be a man-coming home and finding his spouse of x years in bed with somebody else shall not trigger a similar loss of control is beyond me.

The fact is that one cannot specify what is and is not a reasonable ground for loss of control for the simple reason that nothing ever seems reasonable when one looks at it from the point of view of somebody who is totally in control and rational. It is for a jury to decide the following question: was the provocation in this incident-whatever that incident may be-sufficient to cause that person, on the spur of that moment, to kill in that way? That is entirely a matter for the jury to decide. The hon. Lady has not made any case tonight for the argument that, quite uniquely, the one circumstance in which the jury cannot make that assessment should be sexual infidelity.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I was racking my brains on this, and got a bit of approval from those on the Liberal Democrat Benches who are better versed on this than I am. I think that the right hon. Lady would find that in such circumstances-if, in her delightful phrase, a man was as drunk as an owl and the woman involved just pushed him and he fell, hit his head and died-since we can infer from what she said that there was no intention to commit either murder or grievous bodily harm, no charge of murder would lie, still less be followed by conviction.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

That is the whole point and I am sorry that the Lord Chancellor somehow cannot understand it. The whole point is that an intention to kill is not formed.

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Photo of William McCrea William McCrea Shadow DUP Leader of the House of Commons, Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Environment, Food and Rural Affairs)

Leaving aside the example of drunkenness that has been given, as we are talking about sexual infidelity, is it not true that we are not talking about somebody who intended to kill or who was out for revenge? We are talking about someone who snapped and lost control, and a jury should therefore have all the facts.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

The hon. Gentleman sums it up exactly. Somebody snaps and loses control, and whether or not a circumstance is sufficient to cause that snap will be decided by the jury in every circumstance, no matter how trivial, other than sexual infidelity. I do not hear the case made for an exception for that single category of provocation.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I understand the right hon. Lady's concerns and this is an inherently difficult issue, but let me say that it is nothing to do with political correctness. To say that is to trivialise this difficult issue. She chose the example-I did not-and in that case no charge of murder would lie and, if there were a charge and that was the totality of the evidence, it would not go to the jury.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

So, if a woman taunts her husband about her sexual activity with a third party and he, in his fury, moves towards her and shoves her hard and she falls over, hits her head and dies, that is not a provocation because, uniquely, the jury will be told that it cannot take sexual infidelity into account. It is nonsense. I shall not go on repeating the same point, because it has repeatedly failed to be answered and I am aware that we would quite like to vote on the amendment.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

Mr. Grieve has suggested that this is essentially about the Government trying to remove a responsibility from juries simply because juries would find it too difficult to deal with and because it is too difficult for judges to direct juries. I disagree that judges will not be able to direct juries. Judges are perfectly used to directing juries about what they can and cannot consider-they do it every day in court. It is not beyond the ability of judges to tell juries that sexual infidelity cannot be a qualifying trigger for a loss of self-control. If something else is relied on as the qualifying trigger, any sexual infidelity that forms part of the background can be considered but it cannot be the trigger. That is essentially what the legislation seeks to do-to stop the act of sexual infidelity being the trigger that enables people to say that these are extremely serious and grave circumstances.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

My reading of clause 45(6)(c) does not match the comment that the Minister has just made about being able to consider it in the background as long as there are other factors. There is a clear contradiction between the wording of subsection (6)(c) and her intention. That is why I urge her to be so cautious about the clause, which I think has been very poorly thought through.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The partial defence for loss of control exists on the basis that there will be certain sets of triggers-things that take place that cause the loss of control. Sexual infidelity is being disregarded as an acceptable trigger that can play into the loss of self-control. We believe that it is acceptable to do that precisely because we do not think that sexual infidelity, in itself, should be considered an acceptable reason for somebody to have killed their partner, husband, wife or whomever the circumstances might involve. The background information might well form part of the case, but sexual infidelity will not be the trigger for allowing the defence of that partial loss of control.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I am grateful to the Minister for giving way. At the risk of taking up more of her time, I point out that she knows that clause 44(1) already does not apply if

"in doing or being a party to the killing" somebody

"acted in a considered desire for revenge."

That is a very important clause that I entirely agree with, but the fact that it is there means that the examples she has been giving about killing on the ground of sexual infidelity based on a feeling of vengeance could not come into the picture anyway. That is why it is such nonsense to include this provision, and why it will be impossible for a judge and jury to disentangle the facts when they are all mixed up together.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I completely disagree with the hon. and learned Gentleman. The judge and indeed juries are quite capable of considering the information that is available to them as background information. We are saying that it is completely unacceptable that sexual infidelity in itself should be used as the trigger to allow the defence of loss of self-control to come into play. That is essentially what this is about, and I am quite surprised that Mr. Hogg feels that it is appropriate-indeed, this featured in the case he discussed-for somebody who has committed sexual infidelity to be told by their killer, or for it to be determined in a court case by their killer, that that is essentially just cause. "You have committed sexual infidelity and that is just cause for me to commit murder," is not an acceptable claim.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is not what I was saying. I was saying that when there is a cocktail of events-in the case I cited, they included the sexual infidelity that formed the background, together with abuse and taunting of the defendant-the combination is capable of amounting to an appropriate trigger. Incidentally, that is also the view of the Law Commission, and when it took that question out to sample-I think the Minister will find it on page 66 of the report, but I could be wrong-that was also the view of the focus groups to which the question was addressed.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 8:00 pm, 9th November 2009

The right hon. and learned Gentleman and I are clearly not going to agree on the issue, and unfortunately Miss Widdecombe and I are not going to agree either-whether it is on sets of circumstances, sexual infidelity or drunken owls.

In the remaining time, I want to deal with some of the other points. The hon. Member for Cambridge referred to the issue of whether sexual infidelity is a thing done, a thing said or both. We have used the words "done" or "said" in the provision, to the effect that the fact that a thing done or said constituted sexual infidelity is to be disregarded. By doing so, we are making it clear that the subsection relates back to the earlier subsection, which refers to

"things done or said...which...constituted circumstances of an extremely grave character, and caused"- the defendant-

"to have a justifiable sense of being seriously wronged."

Although it might be difficult to understand how "things said" would of themselves amount to sexual infidelity-I understand the point that the hon. Member for Cambridge is making-if we were to remove that term we could leave a loophole that might be exploited in the future. For clarity, and to ensure that the provision is seamless, the provision refers to the words in the original subsection-"things said or done."

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

That is precisely why it is important that if there is to be a subsection 6(c), it refers to 4(a), as my amendment does, or to 4(b) rather than to the first words in subsection (4) because those words cannot possibly apply in terms to sexual infidelity.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

That is why we are ensuring that there is seamlessness between the subsections with the words "things said or done". That will ensure that sexual infidelity cannot be relied on in those circumstances.

The hon. and learned Member for Beaconsfield seemed to suggest that there is no support for the amendment, beyond some form of political correctness. I have to tell him that is quite contrary to the reality of the situation. We have received more than 40 representations, from individuals and groups, asking the Government to seek to overturn the vote taken in the other place. Those organisations are significant and varied. They include the Women's National Commission, Amnesty International, the Eaves group, Justice for Women, violence intervention programmes and a range of other rape crisis organisations and other groups that support women who have been raped.

All the representations we have received have stated clearly that in the killing of a wife or girlfriend by a partner, actual or suspected infidelity has often been used in the past to reduce murder to manslaughter. The law should be clear that that is no longer acceptable. The penalty for infidelity should not be death, and partners who believe it is their right to kill should always go on trial for murder. In this instance, our concern is that men who kill women should not be able to plead the traditional argument that she was unfaithful.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

claimed to move the closure (Standing Order No. 36).

Question put forthwith, That the Question be now put.

Question agreed to.

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Question put accordingly, That this House disagrees with Lords amendment 55.

The House divided: Ayes 299, Noes 145.

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Question accordingly agreed to.

Lords amendment 55 disagreed to.

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