With this it will be convenient to discuss the following amendments: No. 2, in clause 1, page 1, line 5, leave out
‘any building or part of a building’ and insert
‘that building or part’.
No. 4, in clause 1, page 1, line 13, at end add—
‘(1C)Subsection (1A) does not apply unless these conditions are met—
(a)the building, or part of the building, in question is a house;
(b)the person who uses the force is the householder.’.
No. 5, in clause 1, page 1, line 13, at end add—
‘(1D)In this section “house” means any dwelling (including a flat, caravan or boat).’.
No. 6, in clause 1, page 1, line 13, at end add—
‘(1E)In this section any reference to a house, or part of a house, includes a reference to any garden or other ground belonging to that house or that part.’.
No. 7, in clause 1, page 1, line 13, at end add—
‘(1F)In this section “householder”, in relation to a house, means any person who occupies the house as his residence.’.
No. 8, in clause 1, page 1, line 13, at end add—
‘(1G)For the purpose of this section it does not matter whether a person occupies a house as his only residence, his main residence, or otherwise as his residence, including occupation as a holiday or other temporary residence.’.
No. 9, in clause 1, page 1, line 13, at end add—
‘(1H)For the purpose of this section a person is not to be regarded as occupying a house as his residence if that occupation is as a trespasser.’.
May I say what a pleasure it is, Mr. Cook, to see you in the Chair? I know that all members of the Committee will get a good and fair hearing as a result of you chairing our proceedings.
Amendment Nos. 1 and 2 are mine. Amendments Nos. 4 to 9 were tabled by my hon. Friend the Member for Ealing, North (Mr. Pound), and I am sure that he will want to speak to his amendments in due course. They are good, well constructed amendments, and I shall be supporting them.
We had a good discussion on Second Reading, and I made clear my view, as did a number of my colleagues, some of whom are members of the Committee, that, for a number of reasons, the Bill is flawed. I shall not repeat what was said on Second Reading, but the amendments give us the chance to consider in detail some of the problems and flaws, and to see whether they can be ironed out. To an extent, the amendments are probing. They are intended to get answers from the hon. Member for Newark (Patrick Mercer), so that we can see where he stands.
The Bill’s title is typically bureaucratic, but I think that it is mistitled. As we can see from some of the amendments tabled by my hon. Friend the Member for Ealing, North, the Bill is not about the protection only of householders. Others could be covered by its provisions. I am sorry if some of the Bill’s supporters think that I am being a little cynical, but those who have to consider a Bill in Committee give the legislation a title of their own if its title does not quite fit in their mind. The title of the Criminal Law (Amendment) (Householder Protection) Bill does not quite stick in my mind, so I have been considering it under the title of “Kill a Burglar” Bill, because at its worst that is what it will authorise. I apologise for being a little cynical, but that is how I see it.
We are coming up to an election and the hon. Member for Newark will presumably be putting the Bill in his personal manifesto for his electorate—for him the Bill is, quite rightly, a good election campaigning point. I offer a word of advice. I do not think that it will go down particularly well if he says, “I promoted in Parliament my Criminal Law (Amendment) (Householder Protection) Bill.” Calling it a “Householder Protection” Bill would not be bad, but the rest is rather bureaucratic. It would be better still, in my view, if he said in his election manifesto that he had promoted his “Kill a Burglar” Bill. His electorate would at least know where he was coming from and what it was all about.
I am sure that most members of the Committee do not impute any such base or venal motives to the hon. and gallant Member for Newark, although I can understand my hon. Friend wishing to disaggregate the title. However, as my hon. Friend ponders over the title, he might consider the fact that it should be called not the “Kill a Burglar” Bill but the “kill absolutely anyone, including a wandering scout, the kid from next door trying to get his football back, or those who wander into someone else’s garden” Bill—but that is another title that does not trip off the tongue easily.
May I tell the hon. Gentleman ever so gently that, although he might poke fun, this is a serious issue? As someone who represents a Northern Ireland constituency, I can tell him that burglary and the crimes that occur when someone burgles a home are uppermost in people’s minds following the cessation of paramilitary violence in Northern Ireland.
Let me say that there was no venal motive behind my suggestion. At the end of the day, however, the issue of burglary is one of the headline points about the Bill, and I was drawing attention to it. The hon. Lady makes a good point, and I do not want to poke fun at the issue of burglary or at the victims of burglary. It is an extremely serious issue, which is why, on Second Reading, I made some other suggestions about how to deal with burglars. It is a serious problem, but the question is how we go about dealing with it. As I want to make clear, that is best done through the police and the authorities.
The hon. Gentleman offered my hon. Friend the Member for Newark some advice, but let me put his mind at rest. My hon. Friend does not require any advice on this issue. It does not matter how the Bill’s long title is changed. Everyone in the country knows precisely what my hon. Friend is trying to do in the Bill. He is trying to give householders rights of protection, because those rights are not clear at the moment. Whether or not he puts that in his manifesto, he will rightly get the credit for standing up for something, which the hon. Member for Ealing, North manifestly failed to do on the “Today”programme last year.
Order. I have been lenient for the first seven minutes in allowing comments that were more properly raised on Second Reading. I remind the Committee that we are discussing specific amendments and I would appreciate it if hon. Members concentrated on the contents of those amendments.
I said that I did not want to repeat Second Reading points. In a way, I was just making introductory remarks. However, perhaps I can return to the comment made by the hon. Member for Sutton Coldfield (Mr. Mitchell)? As I said on Second Reading, it is a worthy thing for the hon. Member for Newark to have introduced his Bill and for the House to consider it. He said that he had been successful in getting his own party to adopt it as party policy and in getting some movement from the Government. We have had a thorough review of the law, and, as a result, guidance has been issued by the Crown Prosecution Service and the police. The hon. Gentleman can claim credit for that. It is the detail of the Bill that gives rise to problems, however, and I deal with that in the amendment. This is a flawed Bill.
The Government have made it clear that the law is already on the side of the householder, who can use reasonable force. The benefit of the doubt will be with the householder, not the burglar, when the police and the CPS consider the matter. I oppose the death penalty, so I do not like the provision in the Bill that would give people the right to use excessive force. That has to be looked at carefully. As the hon. Member for Newark himself said on Second Reading, people cannot use grossly disproportionate force, and that is the subject of later amendments. I do not believe in the death penalty even for burglars, who, as has been said, are pretty awful, but they are not the worst criminals. We can all think of others who are worse, such as cold calculating murderers. I do believe in policing. The police need to do their job, which is where the drive needs to come from.
Nor do I believe in vigilantism, which is not a good way in which to proceed. The “Death Wish” films with Charles Bronson are a great example of that. They show what a fad this is. They were about street crime, which the Bill does not cover. The latest fad is a “Death Wish” type of vigilantism in the home against burglars. It is not a good policy, because only the strongest person, such as a big strong man, can take on a burglar in their own home. That is not an option for a vulnerable woman or an elderly and frail person.
That takes me right to my amendment. Although I am opposed to vigilantism, I am not against self-defence. We should consider self-defence that occurs on the street as well as in the home. The Bill makes a false distinction between the two, as my amendment highlights. Under the Bill, for example, the test for a victim who suffered rape in the street or in a park would be different from that for a victim who suffered it in their own home. That is not right. The rapist would be a trespasser in the home, but not outside it.
I have argued that the claim of self-defence should apply for women who kill a violent partner.
I have listened carefully to the hon. Gentleman. Will he explain why he wants
“in a building or part of a building” to be inserted after the word “person”? Surely he is confining the import of the Bill to a building rather than expanding it to include the street.
I do want to insert those words and, although you, Mr. Cook, are giving me anxious looks, I want to put the matter into context. The crucial part of my amendment is the distinction between vigilantism, with which I do not agree, and self-defence, with which I do agree. Self-defence is problematic because it must be genuine, but it should not be a different matter in the street from in the home. Nor should it be an excuse for someone to take the law into their own hands, which is a danger under the Bill.
Under the Bill, the householder who does the killing can be anywhere. He can be inside the building or outside it. He can be on the roof or in the street, within the boundary of the premises or outside it. He can be on the outside shooting in. The burglar must be inside the building or trying to get out of it. That is a ridiculous distinction, and is full of problems. Could not someone trying to get in be a window cleaner? Could someone say in their defence, “Well, I thought he was trying to get in, but he turned out to be a window cleaner,” or, “I shook his ladder and he fell off,” or, “He had an accident and got killed?” Their excuse would be in this provision, which is unacceptable.
Is it the hon. Gentleman’s contention that if I, as a householder, see a burglar going into my home, I can do nothing until I run round, open the back or front door, get into the house and deal with him in my home? Is that what he wants to persuade us of by his amendment?
The law already provides the opportunity, which is not confined to householders or to those within the boundaries of the house—this was the point of my original remarks when I tried to set the scene—to use reasonable force in self-defence. As I said, that has been strengthened by the Government’s guidance. Clearly, therefore, doing nothing in those circumstances is not the issue. However, the question arises—and this opens the matter up seriously—of someone shooting from outside, albeit that it might be the householder. As we have been reminded by the amendments tabled by my hon. Friend the Member for Ealing, North, it might not be the householder but a security guard or someone similar. It is a problem.
My hon. Friend has used a phrase that we have heard a lot in the House and in the media in relation to the Bill—the phrase “genuine self-defence”. Will he provide the Committee with a few examples to define that?
That is a good point, and there are probably people of a more legal turn of mind than mine and of more legal expertise who could set out that definition better than I can. However, we all know about and have come across relevant cases.
I have come across cases of battered women who have killed their violent partners and I have argued in the House that that was self-defence and that they should not have been given a mandatory life sentence. I have been involved in cases where people said that they were the victims of racial attacks and had struck back with force in self-defence. That has been a contentious issue and it is right that it should be a legal defence, even in the event of the person who was trying to attack being killed. There should still be a defence, as for the householder in the present instance.
However, there are risks to the approach It tends to make carrying a knife or a gun against the fear of an attack almost acceptable; I do not think that we want that. The Government have legislated against guns. What should be specified is genuine self-defence in the circumstances.
I want to return to the point of the amendment: the question of the householder outside the building shooting in and the burglar being inside, or trying to get inside, the building. I gave the example of the window cleaner. What about someone who had lost his key and was trying to get in through the window or over the fence? Someone else associated with the house, who would probably be another householder who perhaps did not recognise him—or who might not even be a householder, if the supposition of my hon. Friend the Member for Ealing, North is right—could assault the individual who was trying to get in. That would not be reasonable.
Perhaps a teenage son or daughter who was a member of the household might give their friend a key, while they went down the road to the shops to get a few beers, or a few sweets. They might say, “Let yourself into my house. Here’s the key. Wait for me there.” If their friend did so, the parent might come back before the return of the son or daughter of the household, see someone unknown to them in their home and, taken by surprise, assault them. I do not think that that would be a good reason, either. The question of attempts to get into the building is difficult and problematic.
Under my amendment, both the burglar and the householder would have to be inside the building or part of the building. The amendment tabled by my hon. Friend the Member for Ealing, North is more explicit, but I think that part of a building would probably include a garden or a garden shed or outbuildings such as a garage. That, incidentally, raises another interesting point—the Bill presumably gives the householder the right to attack a burglar who is in a garage, not for burglary but for auto theft or something akin to it. That, too, shows how, because of the range of circumstances, it is not easy to define what the Bill is about.
The worst aspect is that the distinction that is being made is a false one. The householder may be outside and the burglar may be inside, but what about a burglar running away with property? When he is off the premises, is it all right to attack him? That was an aspect of the Tony Martin defence.
Has the hon. Gentleman studied the guidance that was given by the Crown Prosecution Service when the Bill was published a few weeks ago?
I have, indeed, and I referred to it on Second Reading. It is included in my speech somewhere, but I cannot find it now—I think that is because it relates to the next amendment on which I am due to speak. I have studied it and it certainly means that the CPS and police will consider cases sympathetically to the householder; there will be swift decisions and they will be favourable to the householder and not the burglar.
If the hon. Gentleman has studied the guidance, he will have seen that even under the present law it is perfectly acceptable to try to apprehend a burglar who is off one’s property and making off with property that has been taken from the house, and that a degree of force may already be used. I fail to understand why the hon. Gentleman is questioning my Bill on those grounds.
That is the point about the law that already exists, and reasonable force. The Bill is adding a new category, under which householders will have more powers in the relevant circumstances—new and differential powers that they would not have in the street.
Is not that the point of the Bill—that additional powers are required? Its weakness, if there is a weakness in it, is that it is too modest in its reach; there should be the equivalent of a drainpipe clause, to give the householder protection against attempts to claim compensation by, for example, someone who has shinned up a damaged drainpipe and fallen off, breaking a leg or a back. That is the Bill’s only potential weakness.
I do not agree with my hon. Friend on the general point that he makes, but I do agree about the compensation culture. In the circumstances that he describes, compensation should not be given.
I ask the Committee to consider what might happen under the Bill if someone comes to the front door whom the householder believes to be a burglar or whatever, or with whom the householder has had some run-in in the past. Perhaps the person at the front door has come to apologise, or perhaps he has come to continue the feud, and the fracas or assault takes place at the front door without the person actually crossing the threshold. Presumably the householder in those circumstances would have a defence under the Bill. All they would have to say was, “Well, I thought he was going to try to force his way in.” That is problematic, because a bailiff has a right to force his way in and might do so.
Can a householder who assaults a bailiff say in his defence, “I thought he was a burglar. I thought he was going to commit trespass and take my possessions”? In my time as an MP, I have seen many cases in which constituents have been unfairly treated because of bills that have ended up with a visit from the bailiff. They could have said, “I was defending my property from being unfairly taken from me.” The provision could make the life of a bailiff much more dangerous.
The amendment seeks to establish that the trespasser and the householder are at least both on the premises when the assault or self-defence takes place. It is up to the hon. Member for Newark and his supporters to make their case for there being such exceptions under the Bill. Why can the householder shoot or assault the burglar from anywhere off the premises, but the burglar must be on the premises? That is why I made the point about the burglar running away. The Bill arises from the whole Tony Martin case. I know that there was some sympathy for him, but the Bill does not really address the matter.
My hon. Friend mentions the Tony Martin case, which it is almost impossible for us not to mention at some stage. I note that the future of the BBC is being discussed in the Chamber. Does my hon. Friend agree that all decent people will have noticed with a sense of horror that the BBC has paid Brendan Fearon, the surviving burglar in that case, £4,500?
Order. This is all fascinating stuff, but it is not entirely pertinent to the task in hand. I appeal to the Committee: for heaven’s sake, let us focus on the points at issue, or we will be all over the countryside next and into the western isles.
As the Member of Parliament who has since been at the eye of the Tony Martin case, I should point out that only two of my constituents were involved. One was shot dead, and the other was shot and wounded. May I make it quite clear, as I have throughout our consideration of this measure, that the Bill would make no exception for Mr. Tony Martin? He would still go to prison. Speaking purely personally, and as Mr. Brendan Fearon’s Member of Parliament, I have absolutely no sympathy for Mr. Tony Martin.
I understand that, and I appreciate the hon. Gentleman’s statement. There is no doubt, however, that this drive for a change in the law arises from the Tony Martin case and the sympathy expressed by the then Leader of the Opposition and Opposition Front-Bench Members for at least certain aspects of his case. The hon. Gentleman is right, however, that his Bill does not fully address the issue raised by that case. My amendment draws to the attention of the Committee the fact that the issue is partly whether the burglar and the householder are on or off the premises, and whether we are talking about a house or other building.
Tony Martin waited to entrap the burglars; he had a shotgun and meant to kill them. That was excessive force; even under the Bill, it would probably be seen as disproportionate force, although he would have a better chance of getting off. My understanding is that he shot at Brendan Fearon when he was running off the premises, and that is very pertinent to the amendment: Brendan Fearon was off the premises when Tony Martin shot him.
No, it is not, because the hon. Gentleman’s Bill, as it is currently worded, would not cover that case. Interestingly, I suspect that most of the Bill’s supporters, such as those on the “Today” programme, wanted a Bill that gave householders the power to tackle or assault a burglar in self-defence, and, if they could not do so on the premises, because the burglar had run off, perhaps with their property, to tackle him on the street as well. That relates directly to the amendment.
Order. I have deep respect for the logic that the hon. Gentleman is applying to the points under discussion, but his arguments are becoming circuitous and repetitive. If he can address himself to the specifics of the amendment, we can then perhaps open it to general debate.
The point was directly relevant to the amendment, but I take the point that you consider it repetitive, Mr. Cook. I shall try not to make it again. I was just saying that it was directly relevant to the amendment.
To move on, why does the Bill apply just to trespass? Why does it not, for example, apply to a rapist in the street, as opposed to one who is committing trespass? Why does it not apply to the perpetrators of domestic violence, perhaps against a spouse or a child? They are committing the same or a similar crime of assault in the home, but they would not be deemed to be trespassers, so the victim would not have the right of self-defence proposed in the Bill. Why does property have a higher priority than an individual? That is quite offensive. I come from a long line of socialists, and I think that the person is more important than property; at the very least, they should be equal.
Let me just pick up on that point. The hon. Gentleman has asked a rhetorical question: why is property more important than the person? However, that is not the issue. Does he accept that a special sanctity applies to one’s home? Does he agree with the Home Secretary—his Home Secretary—who said:
“I firmly believe it is the right of every British citizen to protect himself, his family and his home from intruders of any kind.”
Does the hon. Gentleman agree with that or not?
I do, and I have made speeches in the House saying that a person’s home is his castle. That is why I introduced my Racial Harassment Bill to ensure that people did not have to suffer harassment in their own homes. Indeed, that is why the Government have introduced their guidance and tipped the balance firmly in favour of the householder, as opposed to the burglar. I do not think, therefore, that the hon. Lady’s criticism of me is fair.
I have been listening to the hon. Gentleman for half an hour and I have completely forgotten the point that he was originally trying to make. Could he possibly explain the purpose of the amendment in a few sentences and then sit down and let the rest of the Committee consider his point?
I will do that again, but I fear that, having done it three or four times, I will be accused of repetitiveness. Let me just spell out my point again.
Under the Bill as it is currently worded, the householder can be anywhere, including outside the premises shooting in, while the burglar has to be in the building and cannot be running away outside the premises. I am saying—these are the few words that the hon. Gentleman wants—that that is incongruous. It is not the right way to deal with the situation. It is an example of how the Bill’s whole approach is wrong. As I was saying, assaults in the street are just as important as assaults in the home, and the rights of the individual suffering those assaults should be the same in terms of self-defence. Otherwise, we start to get difficult differentiations in the law that are not acceptable. That has summed up in a few words the purpose of my amendment.
I know that we all want to debate that point, but I should like to put a few examples to the Committee. I have jotted them down, and although some may be deemed to be relatively small beer, I should like to make them. What about a mentally ill person, for example?
I have listened more carefully than the hon. Gentleman deserves to what he has said so far. He is clearly going on at great length and injecting a frivolous tone into what is a matter of great concern to our constituents. Let me just comfort him with the point that Her Majesty’s Opposition will ensure that his constituents see the Hansard report of what he is saying so that they can judge whether he is bringing to the matter the seriousness that it deserves. Furthermore, every point that the hon. Gentleman has made so far was answered on Second Reading by my hon. Friend the Member for Newark, whose excellent speech he undoubtedly heard.
I heard the hon. Gentleman’s speech, but I do not think that he answered the particular points relating to the amendment. Otherwise, the amendment would not be on the amendment paper. Indeed, its purpose is to make him explain why there is the distinction I described. I am happy for the Hansard from Second Reading and this debate to go out to my constituents, and to say that I strongly support the Government’s guidance, which gives much stronger weighting to householders than burglars in how the police and Crown Prosecution Service deal with such a situation. On Second Reading, I put forward proposals to have even stronger measures against multiple burglars, and I am also happy for that to be on record.
I shall give my examples. A mentally ill person coming to the door—
Order. I would be remiss in my duty if I were to permit repetition of examples. I am happy to hear examples that illustrate the difficulties that the Committee has faced, but I hope that these are new examples and not repeats of ones given previously.
There is no repeat. I jotted the examples down in the lunch break. I will not give them all to the Committee, but let me give just a couple.
One example happened to me a long time ago. When my step-son was in his teens, an angry man came to the door and demanded to be let in, saying that he had a shotgun, because my son was going out with his daughter and he was very upset about it. The first route to take was not to let him in—especially as he had a shotgun—and then to phone the police; it was not for me to go out and start a fight with him. I have not got a gun or some other weapon, but if I had, it would not have been right for me to get it, challenge him and have a deadly fight in the street. That sort of solution is ridiculous. My point is again that the first route should be to go via the police.
On a point of order, Mr. Cook. I understand your injunction that you cannot allow repetition, but can you tell the Committee whether there comes a point when a contribution is so otiose and low-grade that you feel that you have to bring it to a close?
Let me give another example, then. What about a paedophile who has been released and is in his own home when vigilantes who want to assault him knock on his door to try to get into his house, where they would be trespassers? Presumably that man would have the right under this measure to defend his property and start shooting at everybody. He would have cause to have fear of assault and of being killed; there have been cases of paedophiles being killed by vigilantes. Is the best solution not that they have this sort of law available to them, but that they can go to the police and get things sorted out in that way?
What about youths who pick on an individual and stone his home? There have been a number of such cases. The youths are not trespassers, as they are throwing stones from outside the premises. That individual in his own home has the same right to protection as any other householder. There is no distinction between someone coming on to the premises and someone throwing stones at it.
I am aware that others want to speak and although I have several other examples I shall not give them as I want to hear what the hon. Member for Newark has to say in response to the debate. I want to know why the clause is drafted as it is, why he favours vigilantism over policing, and why an offence in the street is not punished in the same way as a similar offence in the house, creating an anomalous situation.
The Bill as drafted, especially the clause, is not fully thought through; it is appropriate to explore it in depth and Standing Committee is the place to do so. Despite the bad feeling generated by Conservative Members, I have no regrets at raising the issue and probing it, because I want the answers. We are not helped by having flawed and inadequate legislation on the statute book, certainly not when the Government have already produced excellence guidance, which is a better way to help people.
I rise to speak to amendments Nos. 4 to 9. Without wishing to embarrass you, Mr. Cook, I add my gratitude to that of my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) for the pleasure of serving under your chairmanship. I was on the armed forces parliamentary scheme with you and I have respect for your powers of command, which no doubt will be used in the debate.
It is important to put on record two matters that relate directly to my amendments and those tabled by my hon. Friend. First, I repeat a point that was touched on earlier: the hon. and gallant Member for Newark has brought this business to the House in the best possible spirit and for the best motives. I impute to him none of the motives that have been mentioned outside the House; he has acted correctly and properly and recognised a deep concern that has spread throughout the land, a point that the hon. Member for North Down (Lady Hermon) mentioned, too. There is no doubt that the people of this country are concerned and worried, and I respect and admire the hon. and gallant Gentleman for addressing the issue. I am extremely grateful for the assistance that he has given me in our discussions since Second Reading and for the assistance that Heather Millican, of his staff, has given me in replying to my questions.
Secondly, before I go on to the detail, I want to reiterate the seriousness of the issue and the fact that concern exists. We are discussing the amendments simply because they are designed to make the Bill better. The objective is not to destroy it, because to do so would be, in the words of the hon. Member for Sutton Coldfield, otiose. There is a real concern, and my amendments are designed not to destroy, but to enhance.
I understand the motives of the hon. and gallant Gentleman in presenting a Bill of this size—a bijou Bill. However, I think that in this case he has fallen between the Scylla and Charybdis of brevity and coherence.
Mr. Cook, you will forgive me. Unlike the hon. Gentleman, I did not have the benefit of a private education and I left school at 15. Therefore, I am self-taught. [Interruption.] I will certainly give way to someone who is more skilled in demotic Greek or Latin than I am.
I am grateful to the hon. Gentleman for all the comments that he has made so far and for his recognition of the motives behind the Bill. May I say that I would rather fall between the two bodies that he has mentioned than between two stools?
I think that I am grateful to the hon. and gallant Gentleman for that comment, but I am not entirely sure, to be perfectly honest. The limitations of my education are yet again revealed.
I was making the point that, in presenting a brief Bill, the hon. and gallant Gentleman has produced legislation that, frankly, would be unworkable. The Bill has already attracted the attention of people outside the House who see it as a legitimisation of violence Bill. The courage that the hon. and gallant Gentleman showed in a very distinguished military career has been matched by his courage this afternoon when he said on the record that he has no brief for Tony Martin and, by implication, for Kenneth Noye or any of the other people whose examples have been given in Committee and on Second Reading.
The hon. Gentleman has said that he believes the Bill in its present form to be “unworkable”. Will he expound on that and say exactly why he thinks it unworkable?
I am grateful to the hon. Lady, as always. Both she and her husband have much more experience of far greater stresses in such matters than ever I could pretend to understand. I respect very much her position and the information and experience that she brings to the Committee. The measure does not give carte blanche to the householder. It does not even define a householder. The Bill is inaccurately titled because it is not a householder defence Bill and does not even define a householder.
The hon. and gallant Gentleman uses the phrase “grossly disproportionate”. He accepts that the existing common law self-defence argument is applicable, because otherwise he would not qualify it by use of that phrase. Therefore, the present law is demonstrably capable of being used as a resolution in this case. The Bill is unworkable on the grounds of definition, but I will come to that.
I also gently and respectfully suggest that the Bill is unworkable because of proposed new subsection (1A)(b) in clause 1(2), which states that
“this”— the fact that the degree of force used was grossly disproportionate—
“was or ought to have been apparent to the person”.
I am proud not to be a lawyer and understand that far too many lawyers are in the House of Commons. I apologise to any learned Members if they feel offended by that, but there are rather too many of them. [Interruption.] The hon. Member for North Down was a law lecturer. A law lecturer requires a far higher degree of skill than a mere practitioner. However, even a lecturer in law as distinguished as the hon. Lady would surely have immense difficulty in trying to analyse the words in the Bill:
“ought to have been apparent to the person”.
Few of us are capable of mind-reading, but how in heaven’s name could we analyse the frame of mind of a householder or, as my hon. Friend the Member for Leyton and Wanstead mentioned, a security guard, a squatter or even the father of the girlfriend of his son?
Such cases would end up in a court of law because there would have to be an inquest if someone was killed during a burglary. Lawyers on thousands of guineas an hour would spend day after day leafing through their musty tomes of Archbold, and the various other volumes that I see the hon. Member for Newark has brought along, to try to calculate what
“ought to have been apparent”.
Even the wonderful Heather Millican could not produce that sort of information in her supporting documentation.
My hon. Friend mentioned the example of a squatter. That is the subject of one of his amendments; I did not go into that. Could a squatter be a householder under the Bill, and therefore assault a genuine home owner—albeit an absent home owner—trying to enter the premises? The Bill would give rights to squatters which I do not think its promoter envisaged. Will my hon. Friend discuss that a little more?
I was coming to my subsequent amendments. My hon. Friend has, over his many years in this place, won a reputation for being one of the great analysts and someone who studies the minutiae of the law. His forensic skills have been displayed to the delectation of the House and to a wider audience on many occasions. I have no doubt that when his many constituents, who vote for him with regularity and eagerness, receive the copy of Hansard, which the hon. Member for Sutton Coldfield has generously offered to circulate at his own expense, they will appreciate his words even more.
Amendments Nos. 4 to 9—I see a look of relief on your face, Mr. Cook—would clarify inconsistencies. The Bill refers to buildings and could relate to buildings other than residences, which is a problem. We all have in our minds the picture of a house—the word “householder” is in the title—but it is not limited to houses. It could apply to shops, offices or warehouses. As my hon. Friend the Member for Leyton and Wanstead said, it is not confined to a resident, as we would describe the poor so and so who pays the mortgage or the rent, the householder or the occupier, but anyone in the building. He gave some dramatic examples so I will not bore the Committee by going through another litany of examples, but I could—
I could because there is an inconsistency. The example of a squatter is valid. I spent many years working for a housing association in London and frequently had to deal with squatters. I was assaulted by them many times and would not particularly like them to be given the right of redress under common law.
The Bill would enable an undefined anyone to use force against anyone else—also undefined—who is in the building or attempting to enter it. My amendments would ensure that the Bill applies specifically to householders or residents only.
Will the hon. Gentleman address one point? Amendment No. 4 will narrow significantly the Bill’s provisions by introducing the words “the householder”. What would happen if I, as a visitor to a house, were present there with my children when an intruder came in with a shotgun or a knife? Would I be entitled to lift a hand to defend my children?
The hon. Lady puts her finger precisely on the problem. At present, the Bill is called the “Householder Protection” Bill, but it does not protect householders because it does not define them. The amendments are designed to do precisely that. They were tabled more in sorrow than in anger, and more in a spirit of helpfulness than from an urge to destroy. Common law would apply in the case that she suggests, but the Bill would not assist her in any way because she would not be the householder referred to in the long title. Amendment No. 4 would specifically define the position of the householder.
The hon. Gentleman often tables a series of amendments, as he is perfectly aware. I draw his attention to amendment No. 7. In it, he defines “householder” to include
“any person who occupies the house as his residence.”
Residence surely means staying in a particular house at least overnight and at least once. What would happen to me as a visitor when visiting such a house? Have I no right to protect my children? That was my original question.
One would almost suspect that the hon. Lady had read my notes. I have no secrets from her. Indeed, it would do me no good if I tried to keep anything secret, because she can see right through me.
The hon. Lady refers to amendment No. 7, which states:
“occupies the house as his residence.”
In the two pillars of law—in common law, and in housing law going back to the Housing Act 1985—the occupation of a building as a residence is a defined legal phrase. Occupying the building as tenant, a housing association tenant, an owner or an owner-occupier are all contained within the ambit of that legal definition. I am trying to address that precise point. On one hand, I entirely accept that the squatter would have no right to attack the innocent young officer of the housing association or the returning owner; on the other hand, it would equally disfranchise the casual guest—the overnight guest—who happens to have an unpleasant experience. It is that sort of anomaly that makes the difficulties in the Bill so obvious.
We have been talking a lot about householders, and presumably about buildings in which people live, eat and sleep. Does my hon. Friend agree that some people may own other buildings, such as garages and sheds, and spend a lot of their time there? What would be the law as far as those buildings are concerned?
My hon. Friend may choose to cast an eye over amendments Nos. 5 and 6, which address those very points. She says that a house is a building in which people eat and sleep.
People do many things in them. My amendments mention flats, caravans and boats. We have people living on canal boats or narrow boats in my part of the world—bearing in mind the price of housing in west London, that is entirely understandable. Equally, amendment No. 6 specifically widens the Bill’s ambit to include
“reference to any garden or other ground belonging to that house or that part.”
I hope that people in Newark and throughout the country recognise that I am trying to help by addressing precisely the sort of concern that the keen forensic mind of my hon. Friend the Member for Peterborough (Mrs. Clark) draws to the Committee’s attention.
I appreciate that many of the hon. Gentleman’s amendments verge on the helpful, but amendment No. 7 states:
“In this section, ‘householder’ in relation to a house, means any person who occupies the house as his residence.”
How would a babysitter or a shop owner fit into that definition? He has touched on both those points, but if he could clarify that matter for the purposes of the record, I would be most grateful.
I am grateful to the hon. Gentleman for his intervention, but it in some ways illuminates the centrality of the difficulty faced by the Committee in trying both to achieve legal and legislative clarity and to take account of all the different ways in which people live their lives. The answer to the question about commercial premises is that they do not fit into the definition, because the Bill—it is a householder protection Bill—does not cover commercial premises. We are not discussing commercial premises; that is a different pillar of the law. We can certainly do so, and I am sure that we will do so again. Those of us who gather here after May may find ourselves doing precisely that. The hon. and gallant Member for Newark looks quizzically at me. I was just saying that there is a rumour abroad that there may be an election in the spring, although I would naturally discount it—[Interruption.]
The hon. and gallant Gentleman mentioned the situation in respect of a babysitter, an au pair, or someone else who is occupying the premises by permission of the householder. Were he to table an amendment to address that matter, it would certainly attract wide support, because that area needs to be defined. Were he to suggest a provision relating to anyone in the property, be it a house, boat, caravan, garden or garden shed, who is there by express permission as the agent or, in the legal term, as the servant of the person who has the right to give that power, we could discuss the matter in a more positive way. However, the hon. and gallant Gentleman’s Bill does not mention that matter; there is no au pair subsection or babysitter clause. There is nothing in the Bill that refers to people occupying the premises by permission of the householder.
We have rightly concentrated on those who occupy the premises without permission of the householder, because that is of much more concern to us in terms of the phrasing of the Bill. However, the hon. and gallant Gentleman has, almost certainly unwittingly, virtually destroyed the main thrust of his argument by introducing that example, because it shows precisely the sort of legal minefield that we would be blindly straying into were we to agree to this brief Bill, although it has been introduced for noble reasons.
I am grateful to the hon. Gentleman; he has been generous in taking interventions, and I appreciate that. This is a serious issue, and I appreciate the seriousness with which he has addressed it. In order to give him some sleep this evening and to avoid his worrying needlessly, the Committee should be reminded that, since 2002, Practice Directions (Criminal Proceedings: Consolidation) have existed, which provide separate guidelines for burglary at a dwelling house and burglary at a non-dwelling. The issue of how a house is defined is covered in those guidelines.
Had I been one of the hon. Lady’s students at Queen’s, I would undoubtedly have been a better person and a finer Member of Parliament—[Hon. Members: “Hear, hear.”] The enthusiasm with which that comment was greeted might seem to imply that I am somehow failing in my duties at present.
I agree with the hon. Lady, because the problem with the Bill as drafted is that that definition is not explicit. There are legal definitions and current legal guidelines. Reference to the Association of Chief Police Officers and the Crown Prosecution Service booklet has already been made. If we refer to the rubric of that guide note, we will see that the existing law can and should be used. However, it demonstrably does not address the issue of confidence, which the hon. and gallant Gentleman rightly illuminates by introducing the Bill. It is that juxtaposition between a law that is usable and the failure to attain confidence in that law that is the most useful product of our discussion.
I would like to go down a different path. My hon. Friend said that the Bill did not apply to commercial premises, but I believe that it could. Although “householder protection” is in the short title, the long title does not refer to householders. There is no definition of householder in the Bill either. My hon. Friend has tabled an amendment to limit it to householders. Clause 1(2) is key. It states:
“Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter”.
That surely could be commercial premises. A nightclub bouncer could use the clause as a defence. Is there any reason why that is not so? Is my logic flawed there? Could commercial premises be covered?
I am grateful for my hon. Friend’s intervention. I am not the author of this Bill. If I were I might have made the contradistinction between commercial and domestic premises. I am a humble Back Bencher seeking to help the promoter of the Bill by introducing some clarity. I have tried to define “house” in the context of “householder” in amendment No. 4. Had I to cast my net even wider I would certainly have included commercial premises, but my amendment refers to “house”.
On Second Reading, I referred to the case of a village postmaster who in the face of a most vicious, unprovoked attack by someone who broke into his post office, defended himself. It resulted in his attacker’s death but he was exonerated and acquitted. That example preyed on my mind a great deal and I wondered why we could not extend the Bill to commercial premises. The answer—and I am again grateful to the promoter of the Bill and his staff for their assistance—is that the Bill is aimed specifically at the domestic context. If he wishes to expand it to the commercial world he has the right to do so, but at present we are talking about a domestic situation. We are talking about householders in both the long and short titles. I am trying to clarify use of the word “householder” by defining the legal status of the householder and the legal status of the house.
Some who are following our proceedings may think that this is merely MPs arguing about how many angels can dance on the head of a pin, but let us never forget for one second that we are talking about life and death. We do not need to come up with lurid examples, but a person could be killed and the courts would have to judge whether the killing was lawful under the terms of the Bill and the existing common law. Definition is utterly crucial. To say that it is a matter of life or death is not an exaggeration but an illustration of the seriousness of the subject.
My hon. Friend will be well aware that many people live above the shop. People who run a newsagents or a post office may have a flat above the commercial premises. While they are upstairs watching the television or having a meal in their private quarters, the shop beneath could be invaded. If they came down to try deal with the situation, I do not think that they would be protected as the Bill stands.
I am obviously grateful to my hon. Friend. My amendment No. 5 specifically brings flats within the ambit of the Bill. It does not and cannot deal with the issue of people in transit from the flat above the shop to the shop. In many ways, and not for the first time, my hon. Friend has shone a beam of illumination into the murky world of putative legislation. That is the sort of problem that we have to face. This is not some abstruse, quasi-legalistic issue: a person could be standing in the dock of a court of this land with someone else 6 ft under the soil because of this sort of problem. I am grateful to my hon. Friend for her comments. I wish that I had had the wit or the foresight to table better amendments which had taken those points on board.
May I repeat the question that I asked earlier? I believe that the hon. Gentleman is trying to be helpful. Therefore, on amendment No. 7, could he give me a simple and, if at all possible, brief answer to a question? Does his definition include a babysitter or a shop owner?
The hon. Gentleman is right in saying that I have not answered his question. I cannot answer it because I have not drafted the Bill. I have drafted the amendment, which states:
“occupies the house as his residence.”
It certainly does not include babysitters or au pairs because, as I said earlier, I was relying on two definitions that refer to and define the role of a resident or a person occupying a house as his residence. One is in housing legislation and the other is in common law. The hon. Gentleman will have noticed that the amendment does not say “primary residence”. Those words are frequently used in legislation, and, by logical extension, there can be a secondary residence. The amendment does not seek to define in those terms.
I am trying to be helpful, as the Bill does not even approach the lack of comprehension in my amendments. The Bill is unclear, and I am trying to make it clearer. My amendments are semi-clear; I entirely accept that none of them are totally clear. I give way to someone who knows more about the law than I ever could.
I am most grateful to the hon. Gentleman for his generosity in taking an intervention. I, too, regret that he was not a student of mine.
May I draw to the attention of the hon. Gentleman and members of the Committee the fact that, although the amendments are very interesting indeed, they are superfluous, in that we already have on the statute book a definition of a building? A definition is provided in the Theft Act 1968, which includes as a building something with a degree of permanence. It also includes an inhabited vehicle or a vessel, which covers the hon. Gentleman’s concern about occupied barges in his constituency. We already have a working definition of a building.
I am extremely grateful for that. Like the hon. Lady, I wrestled with the 1968 Act when I was considering the comments that I would make in this debate. My problem with the Act, which I read as part of my attempt at least to approach the degree of educational excellence that is displayed by many people in this Committee, is that it refers to a great extent to theft from vehicles. Even the hon. and gallant Member for Newark is not proposing that someone who happens to be sitting in a car when someone breaks into it can kill in self-defence or in defence of their residence. Sadly, there are people who live in cars, but the Bill is not about people living in knackered Mazdas on the bypass defending themselves against somebody smashing in the quarter light and reaching their hand through to grab them by the throat. If it were, we could talk about all the sections in the 1968 Act.
The hon. Lady is correct in saying that there are already definitions and legal recourse in legislation for a householder faced with such a situation. However, I do not know—you do, Mr. Cook, but I do not—whether one can simply say “and within the Bill we incorporate the Theft Act 1968.” I do not know whether that would be plagiarism or whether it is even allowable. I thought that the purpose of legislation was to try to right a wrong—to correct something that needs correcting—and to do so in a coherent and utterly unambiguous way so that in months or years to come some overpaid, bewigged barrister should not be given free licence to argue the minutiae of double meanings. We should get it right at this stage, not just to stop barristers filling their pockets but because the victims, their relatives, and the people involved in any case that would be covered by an Act passed by this House would look to us to have produced something of legislative clarity, which would stand up to scrutiny.
The problem that we must deal with is precisely the one raised by the hon. Lady. Whether we can simply incorporate the Theft Act into the provisions I do not know, but I do know that the brief Bill that has been promoted, with the best of all motives, by the hon. Member for Newark, is not workable as it stands. I return to that original expression, not with a tone of aggression but with a tone of regret. I know what the hon. Gentleman is trying to do and I desperately hope that he can tackle the issue of confidence in the legislative process. However, the Bill is not the way to do it.
I was pondering over the intervention of the hon. Member for North Down, which has me increasingly worried about cases in which the property from which the rights in question flow is a vehicle or a vessel. Disputes can happen over who owns a house, or who is the householder, as my hon. Friend will know, but they are more likely to happen about who owns a vehicle or vessel. We all know that there have been legal cases on such matters. Surely great complication will result if one of the people who claims such rights goes in, saying, “This is definitely mine, and I assault you for trying to come and get it or claim it,” and quotes the Bill as defence. Is not that a difficulty that the hon. Member for North Down has raised?
Mr. Cook, you will forgive me for allowing my mind to wander briefly at the prospect of an officer on the bridge of a Type 23 frigate having someone pull up alongside in a rigid inflatable boat and try to invade the ship. I think that the defence would probably be fairly strong in that case, not to say robust. However, the point about vehicles is correct. We are not talking about someone occupying a vehicle as their residence—that is not what the Bill says—but the difficulty is that such a case could be affected. When the Theft Act 1968 is prayed aid we must consider all the ramifications—not as an intellectual exercise but as a matter of life and death.
I respect the hon. Member for Newark, but the purpose of my amendments, on which I am just finishing—
I am so stunned by the remarks that have been made that I can barely rise to my feet. I, like the hon. Member for Leyton and Wanstead, have been pondering the intervention of the hon. Member for North Down. The hon. Member for Ealing, North said how much improved his grip of the law would be had he studied under the hon. Lady. She has advised him that there is already legislation that makes virtually all his amendments otiose. Will he now take her advice, for the reasons that he gave, and withdraw his amendment so that we can get on with studying this important Bill?