4.3 pm

Criminal Law (Amendment) (Householder Protection) Bill – in a Public Bill Committee at 3:48 pm on 9th March 2005.

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On resuming—

Photo of Steve Pound Steve Pound Labour, Ealing North

The hon. Member for Sutton Coldfield was making a point, with rather more grace than the hon. Member for North Down did, about existing legislation that covers the purpose of my amendments. Legislation does exist, but it is not before the Committee this afternoon.

This afternoon, we are considering an amendment proposed by the hon. and gallant Member for Newark to the Criminal Law Act 1967, and I shall confine myself to that area. The fact that other aspects of common law, of criminal law, of various other pillars of legislation and legal precedents could apply is not within the Committee’s ambit. I suspect that you would have little patience with us, Mr. Cook, if we sought to widen the ripples of the debate so broadly.

As I said, my amendments seek not to reverse the thrust of the Bill or to emasculate or destroy it, but hopefully to clarify it and its intentions and to help us to go some way in re-establishing the confidence in the power of the law to protect the individual, which is the crux of the matter before us this afternoon.

Amendment No. 4 seeks simply to rule out proposed new subsection (1A) unless the building in question is a house and the person who uses the force is the householder. I entirely accept that by defining a house and a householder, and including those categories, automatically excludes a great many other categories. Sadly, unless we are to say that anyone can do anything with anything to anyone, we have to apply legislative stricture and define the Bill’s precise ambit, which is why I sought to limit the proposal to that of a house or a householder. However, in the spirit of charity, and having studied long into the night—not just Archbold and the other authors who have been mentioned—I noted that the definition of a house does not include a flat, a caravan or a boat. I could have extended the proposal and made it wider by including tents and people in temporary accommodation in tepees, wigwams and any number of bizarre new-age hereditaments.

I am talking about houses, including flats, caravans or boats, in relation to the citizenry of this nation having the confidence that they can be protected in their home. I utterly endorse the point made by the hon. Member for North Down about the sanctity of   the home, which may well be a flat, a caravan or a boat. Unfortunately, the use of the word “householder” is far too narrow.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

On a point of order, Mr. Cook. Could you obtain some advice from the Clerk? The title of the Bill contains the words “householder protection”, yet there is no reference to a householder in the Bill. The Bill proposes that a person may use force if they are on premises; should the title be altered?

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. The hon. Gentleman has made the point that he seeks to register. It is not a point of order for the Chair; it is not a point of order at all.

Photo of Steve Pound Steve Pound Labour, Ealing North

I sympathise with my hon. Friend’s confusion. I referred earlier to my point about the juxtaposition of brevity and coherence, and the fact that the search for one may be detrimental to the other. Like the cavalry he knows so well, I sought to ride to the rescue of the hon. and gallant Member for Newark.

Amendment No. 5 includes within its ambit flats, caravans and boats, although not what my hon. Friend the Member for Peterborough, in a typically prescient and helpful intervention, referred to as commercial premises where the person who operates the business lives above the premises. Unfortunately I lack my hon. Friend’s intelligence and wisdom, or I would probably have included it in the amendment.

I extended the physical ambit in amendment No. 6, which is my favourite, to include a reference to

“any garden or other ground belonging to that house or that part.”

It is not an attempt to address the Kenneth Noye conundrum; Kenneth Noye killed a police officer in the garden of his house and his defence was that he feared that the police officer, who was in plain clothes, was seeking to enter the house. The amendment includes within the defined demesne the garden or any dwelling within that garden; that is essential.

The hon. and gallant Gentleman may have some sympathy with the amendment, because he will realise that a person’s sanctuary—the word used by the hon. Member for North Down—can include their garden; a garden is a lovesome thing. The fact that someone invades a person’s garden must be given consideration, not just because that person may be lurking in a gazebo, resting in a hammock, or in a garage working on one of their cars, but because that garden is part of their property. If we are to allow people to defend themselves within their homes, the definition of “home” should include the area immediately around it: the demesne, area, garden or blessed plot.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

The hon. Gentleman described amendment No. 6 as his favourite. Will he reconcile his favourite amendment, which has the wide definition of a house to include a garden, with amendment No. 4—perhaps not his favourite—which states that

“the building, or part of the building, in question is a house”?

Is he trying to convince the Committee that a building equals a garden or any other ground belonging to the house?

Photo of Steve Pound Steve Pound Labour, Ealing North

In many cases it could. For example, one could have outbuildings or sheds. In the part of the world that I come from, we dream of gardens and long for garages, and the closest we get to broad acres with a summer house is looking in catalogues. We tend to have lock-ups and lean-tos, but I accept that our life in west London is not typical, and some people have sheds, gazebos, garden houses and summer houses in their gardens. [Interruption.] I am reminded sotto voce by my hon. Friend the Member for Cleethorpes (Shona McIsaac) that there are those who have decking and hot tubs. I have no idea what either of those things are, but were I to be in a hot tub on some decking, and someone imposed their physical presence on my person, I would wish to defend myself.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Perhaps the hon. Gentleman misunderstood my question. I have no difficulty with an outhouse or a shed constituting a building, because that is clearly the case. My difficulty is that amendment No. 4 contradicts amendment No. 6. Does a building include a garden or any other ground; are the two interchangeable?

Photo of Steve Pound Steve Pound Labour, Ealing North

I am genuinely grateful to the hon. Lady. Not for the first time, I regret that I missed her Socratic dialogues and the colloquiums that she undoubtedly led when she was a lecturer at Queen’s.

My amendments are complementary. Amendment No. 4 seeks to confine the legislation to a house or a householder. Amendment No. 6, which is poor but my own, and something that I have a certain affection for, follows through the logic of what happens if a person has a subsidiary building, be it a shed, a lean-to or a lock-up. In anticipation of the inevitable legal confusion as to whether a lock-up 200 yd down the road counts as a person’s house, I have sought to make life easier for the courts by stating that the lock-up would have to be in the garden.

Within a garden, the whole magnificent domestic gamut, from gazebos to hot tubs, may be included, but we cannot anticipate what is likely to occur in the future. Fifteen years ago, nobody had ever heard of hot tubs, and in Northolt we still have not. However, there are those in Cleethorpes who speak of little else, so we have to include them. I hope that by defining the domain, I have addressed those issues. If my hon. Friend the Member for Cleethorpes wishes to discuss the matter further with me, I will join her in a hot tub to do so.

Photo of Ms Helen Clark Ms Helen Clark Labour, Peterborough

Although I am not proposing to join my hon. Friend in a hot tub, the points that he makes in his amendments are absolutely logical. Surely a garden or shed appertaining to property that an individual rents or owns should fall within the remit of the legislation. Are we saying that if an individual is attacked in their house, they would be covered by the legislation, but if they are two inches away in their garden, they would not be protected?

Photo of Steve Pound Steve Pound Labour, Ealing North

Yet again, I am grateful to my hon. Friend, although I am slighted by her refusal to examine legislation in a communal hot tub. Her point is serious and touches on the point about a person   fleeing from premises, which the hon. and gallant Member for Newark brought up in an earlier intervention. We have to consider boundaries and define them. In the absence of any other topographical definition, I have simply included that of the domain of the ground of the garden around the house. I think that that is sensible and logical. As I said earlier, I have not mentioned second homes, subsidiary homes or flats, and I have also not included au pairs in another amendment. There is a world of exceptions, but the core of the Bill is that it relates to the confidence of the nation’s citizens in their ability to defend themselves and, in turn, be defended by the law. I respect the hon. and gallant Member for Newark for seeking to do that, and I seek to assist him in that noble cause. Talking of noble causes, I give way to my hon. Friend the Member for Leyton and Wanstead.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead 4:15 pm, 9th March 2005

My hon. Friend’s approach is right and consistent in including a garden as part of a building. However, I ask him to give some thought to the difference between a back garden and a front garden. In most cases, if somebody comes on to a premises at the back garden, they should not be there—we can understand that. However, if someone comes into the front garden—perhaps an election campaigner delivering leaflets—we will assume that under common law they have a right to be there. Surely a householder should not be able to use the Bill as an excuse to assault somebody who has come up the front path. Is that a difference that my hon. Friend would take on board?

Photo of Steve Pound Steve Pound Labour, Ealing North

I have to say that the contrast between front and back gardens may be more apparent to those in the Elysian fields of east London and the broad sweeping green sward of Leyton. It is not a luxury that we enjoy in our part of the world. A front garden for us tends to be a few hundredweight of pea gravel and occasionally a bit of off-street parking.

Whether or not it is the possibility of an imminent election that has concentrated my hon. Friend’s mind, he has touched on an extremely important and relevant point. On Second Reading, I raised the case of someone who went to Milton road in Acton under the impression that they were in Milton road in Hanwell, which is where I live, with nearly disastrous results. That often happens in London, where there are many roads with the same name. We have a certain lack of originality—there are 122 Shakespeare roads and only one named after Karl Marx—and people quite often go to the wrong house. Whether we would evince much public sympathy if this were a protection of political canvassers Bill is a question that I leave to minds that are far greater than mine. I rather doubt that we would garner much support.

The underlying point is right. If the householder has the right to defend himself or herself because of a perception—here I return to proposed new subsection (1A)(b) and the infelicitous phrase

“ought to have been apparent to the person”— we will be seeking to pry into the mind of the householder. A householder could see a Jehovah’s Witness, take a violent exception to their presence and then claim that they thought that they were under threat. How can we define what is in that person’s mind and what ought to have been apparent to them?

If someone of a physically challenging appearance and a confused demeanour came charging up to the front door, as in the example that my hon. Friend gave earlier, should we be giving householders carte blanche to blow their head off just because they do not like the look of them? I think not.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

We have been over this ground so many times. On Second Reading, it was made clear that anything that steps over the bounds and is grossly disproportionate would be illegal. The way in which the Bill is worded would not encourage any form of violence that is grossly disproportionate. I suggest that the hon. Gentleman has been persuaded of that many times in the past and that he is seeking merely to make this process longer than it need be.

Photo of Steve Pound Steve Pound Labour, Ealing North

I was actually drawing my comments to a conclusion.

If, as is apparent, the Bill excludes in proposed new subsection (1A)(a) force that is grossly disproportionate, one almost wonders what its purpose is, because the existing law specifically excludes grossly disproportionate force. It allows a person, within the bounds of proportionality, to use any means, including lethal force, to defend themselves. Let us not forget that, even in the tiny percentage of cases investigated by the CPS, there are three instances of people being killed by householders and the case not even going to court. If the existing law is doing the job and the Bill simply reiterates the existing law and excludes the existing exclusions, one feels churlish but one almost wants to ask what the purpose of the Bill is.

Being a charitable soul and a great admirer of the hon. and gallant Gentleman, I assume that the purpose behind the Bill is to ventilate an issue of great concern in an attempt to reassure people who are concerned. I cannot and never will speak on behalf of the Government, but I am sure that they are grateful that he is seeking to explain to people that this Government and previous Governments have provided that legal and legislative shield that people can use to protect themselves in their homes. If, God forbid, lethal force is used, the person in that house has that right to use that lethal force. As far as I am concerned, that is how the law stands and, if the Bill were passed, it would not make an enormous difference, partly because of the confusion that my amendments are designed to address, and partly because it excludes those grossly disproportionate acts that are already excluded from the law.

Amendment No. 7, which is perhaps not my favourite but is consequential on the earlier amendments, would simply include a new definition such that

“‘householder’, in relation to a house, means any person who occupies the house as his residence.”

That is specifically to address the issue of squatters and illegal occupiers. I freely admit—mea culpa—that it does not include the babysitter or the au pair. That is my fault. I should have included them, but I did not draft the Bill; I simply drafted the amendments.

My penultimate amendment, No. 8, would simply include holiday or other temporary residences. That is logical and sensible. If a person is attacked in their home, whether it is their second or first home is not as important as the fact that they are being attacked. The assault is the issue. I am not trying to wreathe this situation around with legal definitions of homes and residences. I simply seek to clarify the situation with these few brief amendments, which would, I hope, provide clarification and resolve the concern.

Amendment No. 9 is vital and has been touched on by a number of hon. Members. It says that this clause does not apply if the person occupying the property is a trespasser. I turned to the law for the definition of “trespasser” and found that, by and large, it simply means a person who enters or occupies premises without the express permission of the owner, householder or person who is in a legal position to give that authority. The amendment is extremely important. We have heard examples of people who occupy derelict or unoccupied properties and have raves and various parties, of which I know absolutely nothing but my teenage children know too much. Will we be giving them the right to defend themselves against, say, the bailiff who was mentioned by my hon. Friend the Member for Leyton and Wanstead, or the environmental health officer from the local council who is knocking on the door and saying, “Would you consider turning the noise down?” Will we say that such people have the legal right to plunge a bread knife into an environmental health officer? Again, I hope not. I think that the hon. and gallant Member for Newark would probably welcome this amendment, because it would be useful and aid his overall purpose.

I am given to understand that of all the words that I utter in this place, none are greeted with more warmth than, “in conclusion”. May I say, in conclusion, that I entirely respect the motivation of the hon. and gallant Gentleman? He has done the House a service in ventilating this issue, which is of concern throughout the land. I fear that the service that he has done has been more one of raising the matter for discussion and debate than of offering a legislative answer to a serious problem, but I respect him and thank him for the work that he has done.

Come what may, and whatever the result of this afternoon’s debate and earlier debates, we shall have discussed something that needed to be discussed. We shall have faced a problem that had to be faced. We shall be confronting the reality of the lack of confidence about this matter. It is my job, and the job of the hon. and gallant Gentleman and the House, to try to restore that confidence, not just for the good of our constituents but for the good of all the people in the country.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It is good to serve under your chairmanship, Mr. Cook, and I think that you are already guiding us fruitfully in a positive direction.

My hon. Friend the Member for Ealing, North has several times made the point that he does not criticise the motivation of the hon. Member for Newark in presenting the Bill. In that spirit of generosity, we should also thank my hon. Friends the Members for Ealing, North and for Leyton and Wanstead for tabling amendments to help to clarify the Bill.

My hon. Friends have been as positive as they can in all that they have said to try to gain clarity about the practical application of the Bill. Of course, we must, in this place, move from a feeling or a philosophical point of view to something that will work in practice. I think that that is what my hon. Friends have sought.

The hon. Member for Newark knows the Government’s position on the Bill. It has been clear from the outset. We are opposed to his Bill—but not because we do not see burglary as an important issue or because we do not understand the fear and terror that people who are burgled feel. Far from it. We are against his Bill because we think that the law is already clear.

We accept, of course, that perhaps public perception of the operation of the law is not as clear as it should be. That is why my right hon. Friend the Prime Minister undertook, before Christmas, to carry out a review and to obtain clear views from those who operate the law—the Crown Prosecution Service and the police—about whether there is a problem with the law and a need for change. Their advice was clear and we are happy that the law is all right as it stands.

I need to make that point now to provide a context for my further remarks. I want to speak positively about my hon. Friends’ amendments, but I do not want that to lead the Committee or the hon. Member for Newark to believe that we have changed our position on the Bill overall.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I appreciate the points that my hon. Friend the Minister has made, particularly about the review of the law. However, will he ask the Law Officers to review sentences for burglary? Just because I, for one, like the Government, oppose the Bill—

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. The inquiry is not relevant to the point at issue today. We are not talking about sentencing. [Interruption.] We are not discussing, nor do we need to discuss, issues related to sentencing. The hon. Gentleman’s inquiry of the Minister is irrelevant and unnecessary.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

That exchange, which you may or may not want me to comment upon, Mr. Cook, illustrates the importance that we all attach to burglary. It is a serious offence and that should be the starting point for our deliberations.

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. May I ask the hon. Member to enunciate with a little more volume? I am partially deaf and it is difficult for me to hear what she says. If, as a result, I allow her to stray off the point, I shall be criticised by other members of the Committee.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs) 4:30 pm, 9th March 2005

I apologise, Mr. Cook. I was not aware of the difficulty.

The Minister introduced his remarks by referring to the Government’s clarification. He described it as being very clear. In a press release issued on 1 February 2005, the Home Secretary cited the Director of Public Prosecutions. He said:

Ken McDonald, the Director of Public Prosecutions, has made it clear that householders will only be prosecuted if they use very excessive force in defending their home against intruders.”

However, in the same press release, he cited the Attorney-General, Lord Goldsmith, as saying:

“The guidance makes clear that the law supports the right of householders to protect themselves, their families and their property against intruders by the use of reasonable force.”

Who is right: the DPP or the Attorney-General?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It is not a matter of choice. The question is how to define what is reasonable. The problem for the public—this is possibly a misunderstanding—is that reasonable force can sometimes mean significant force. In certain circumstances, it could mean a householder taking action that resulted in a burglar losing his life. That could be reasonable. Clearly, it would need a major act to take someone’s life in that way, but it could still be reasonable. That is the what the guidance tries to make clear. It seeks to give more confidence to householders by saying that the law is on their side and that, when one is confined to one’s bedroom in the middle of the night, what is reasonable may mean that significant action can be taken. I do not read into the comments that the hon. Lady cited any difference or distinction between the views expressed.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Will the Minister explain the distinction between “grossly disproportionate”, which appears in the Bill, and the words of the DPP

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. I do not wish to curtail the breadth of debate, but the hon. Lady’s points are more pertinent to the debate on Government amendment No. 10. Perhaps we can leave her concerns until then. I ask the Minister to continue his response to the amendments under consideration.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I accept your guidance, Mr. Cook, and I am sure that the hon. Lady will be happy to leave it until then.

The Bill applies to a

“person who uses force ... on another who is in any building ... having entered as a trespasser or who is attempting so to enter”.

It can be seen from that clear wording that it contains no express requirement that the person using the force is in the building too. We have heard of examples—not least from my hon. Friend the Member for Leyton and Wanstead—of the burglar being inside the property and the householder outside it. One of my hon.   Friend’s main purposes is to clarify the position that both should be in the property. He gave an example of a householder shooting a gun into a property where a burglar was committing a crime.

I accept the point made by the hon. Member for Newark that the guidance allows for some pursuit of a burglar beyond the boundary of the property, but to go as far as the example given by my hon. Friend would not be acceptable. Once we get to such a situation, it will clearly be a matter for the police and law enforcement, and it will be for society to take action on behalf of the householder to bring the perpetrator to justice. My hon. Friend does us a service by clarifying the fact that we are talking about both the burglar and the householder being in the building.

I am not saying that the hon. Member for Newark intends there to be a lack of clarity. We can explore these matters in much finer detail in Committee, but we cannot allow to pass through this House a Bill that is not clear enough to be applicable, because it would lead to more confusion. He made it clear on Second Reading that his purpose was to clarify an area of the law in which the public lack confidence. It is therefore important to make the terms of his Bill as clear as possible. “Any person, any building” must be the starting point for our deliberations this afternoon, because the danger is that we will end up with different laws operating in different ways when similar acts are being committed.

Why should the Bill relate only to the householder in their house? What about someone in an office or an open space? We are talking about the same brutal attack or a sexual assault, and there should not be one rule for dealing with such an attack in the home and a different rule for dealing with it outside. If a young woman is viciously attacked and threatened with rape, she should be able to defend herself, vigorously and with reasonable force, in law, no matter where she is.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The Minister is being extremely helpful in grappling with a problem of definition. His comments bear not on the main thrust of the Bill, but on the definitions that we all want to get right, and he is very helpfully setting out how he believes they should be clarified. With all the resources of his vast Department, it is inconceivable that neither he nor his colleagues have thought about how to produce a sensible draft. Will he, at an appropriate point in his remarks, explain how the Bill could be amended to satisfy the discrepancies that he sets out?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Ministers always try to bring light and clarity to the world of difficult problems, but the fundamental problem with this Bill—I beg the indulgence of the Chairman at this point, because this will be in our next debate—is that the definition offers a different test of what action can be taken and whether that action is grossly disproportionate or reasonable. Having one test for an action to defend oneself inside one’s home and a different test for the same action to defend oneself outside it will lead to more confusion in the law, not greater clarity.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

Like the Minister, I do not want to pre-empt the next debate on Government new clause 10, but that is about the thrust of the Bill, and it addresses the point about whether existing law is satisfactory. We say that it is not, the Minister will argue that it is, and that will be the subject of the debate. However, he is dealing with a different point now, which is about the definition of those whom the Bill should encompass. I ask him the same question: will he, as he articulately advances his arguments, tell us how the drafting could be improved to respond to those points?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The hon. Gentleman is being very kind to me, but I am obviously not being clear enough, as I have failed to explain that it would be impossible to draft the Bill so carefully and so tightly that it would work in practice, because it would rely on a definition of gross disproportionality rather than reasonableness. The test of reasonableness must be the test that applies, and it must therefore bring consistency to what happens inside someone’s home and what happens outside it.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

If it is impossible to define gross disproportionality, why has that been adopted in civil law?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Again, I am not explaining myself very well. It is possible to define gross disproportionality, and I look forward to the hon. Gentleman’s explanation of his definition of it to see how it differs from the definitions offered by other hon. Members. He is right that we applied a test of gross disproportionality in civil law under the Criminal Justice Act 2003 to prevent a burglar—the offender—from claiming damages from a householder if they suffer as a consequence of their illegal activity.

We have the test of gross disproportionality. To apply it in these circumstances would produce so many anomalies and difficulties, which I shall try to outline, that it would not work in practice. My real concern is that it would add further confusion to the public mind on the matter. We seek greater clarity so that people can defend themselves with confidence and know that they will be backed up by the law when they defend their home, their loved ones and their property, which they have every right to do. The hon. Member for North Down was right to say that the home is a holy place, and the law should respect that. There is nothing in the test of reasonableness that detracts from that sanctity.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

May I make one more attempt to persuade the Minister that there is a way through this? He has again said that there is a difference between gross disproportionality and reasonableness, which will be the subject of our next debate. The issue is the groups of people to whom the subject of that debate will apply. He says that the current definition is confusing. For my part, I am prepared to accept that the Bill may not include every possible group in its terminology, because of drafting difficulties.

I do not want the best to be the enemy of the good, and it may well be that we can settle on a broad definition that covers most of the people to whom my hon. and gallant Friend the Member for Newark is rightly seeking to bring clarity. That is why I ask, for the third time, whether the Minister can present a form of words that meets that definitional point before we get on to whether the current law is adequate in defending whoever needs defending.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am afraid that I have to disappoint the hon. Gentleman. I do not understand how I can improve something that is fundamentally flawed. Perhaps it is possible to improve the Bill slightly. My hon. Friends have attempted to do that by tabling their amendments, and I appreciate the fact that they have done so. However, the fact is that the Bill applies to any person and any building.

As the Bill stands, it does not matter whether we are talking about a home, an office or a commercial premises, and it does not matter whether someone is the householder or not. My greatest concern is the distinction between an action taken to defend oneself in a public place or open space, such as a park or somewhere that is not a building, when a person may be faced by a terrible and life-threatening challenge. They should be able to take the same action in their house as outside, and the Bill would sow confusion and draw a different test for what happens in the home from what applies outside.

Faced with that sort of challenge, individuals should be able to defend themselves with the greatest possible vigour in order to protect their lives, their families and their property. I do not want to cause any confusion between inside and outside. The hon. Gentleman will have further opportunities to test me as to whether I can develop ways of improving the legislation. He may table amendments that seek to do that, and perhaps we will have the opportunity to debate them.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I agree with the Minister’s position and his response to the hon. Member for Sutton Coldfield. Whether inside or outside, the law should be comparable, and it should be very similar, if not the same. If there was to be a change, should there not be a complete review of the self-defence laws? If there were a separate law in relation to burglary and householders, as the Bill proposes, surely it should have an emphasis on self-defence that would be the same as it is for others in an outside environment?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It might help my hon. Friend to know that although the Government are not undertaking a review of self-defence, we will be considering self-defence as part of the review of murder announced by my right hon. Friend the Home Secretary. That will be an important deliberation. Clearly, self-defence that results in somebody else losing their life is a dramatic step, but there are circumstances in which it can be justified. The review will consider that.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs) 4:45 pm, 9th March 2005

The Minister rather beguilingly tried to suggest that I might wish to bring forward amendments to seek to clarify what he and his Department are unable to clarify. At least, that is what I think he was saying. May I reassure him on that point? I have no amendments to make to the Bill. It is an excellent Bill. My constituents and, I submit, his constituents want to see the Bill on the statute book for all the reasons that my hon. and gallant Friend has given. I have no intention of tabling any amendments.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

That is obviously the hon. Gentleman’s choice. He was asking me to table amendments to clarify the position. As I failed to persuade him, I thought he might have sought to table amendments to bring the clarity he seeks. My constituents, like his, regard burglary and the ability to defend oneself when under attack as very important. That is why I am at pains to tell the hon. Gentleman’s constituents and all our constituents that the law is on their side. When faced with this kind of challenge, this affront to their private home and even to—

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. I pay tribute to the Minister’s patience and the patience of the rest of the Committee, but we keep returning to the Second Reading debate when we should be concentrating on amendments. I admonish hon. Members who seek to take us back there. It is needlessly absorbing time that should be spent on the amendments.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I plead guilty to the Second Reading offence, although I am drawn back to it by interventions.

I hope that I do not disappoint or upset my hon. Friend, the Member for Leyton and Wanstead but there are some difficulties with his amendment. He is a generous person and I am sure he will reflect on them. For example, the father whose children are at risk of attack within the home when he is outside the home would not be assisted by my hon. Friend’s amendment. He would be outside: his children would be inside. We may have to find a way of making it clear that he would need to be able to take some action to defend his loved ones. I am sure that my hon. Friend would agree that it would be rather odd if the father seeking to protect his children were placed in a different situation because he happened to be outside the home than if he were inside the home. That clearly illustrates again that even though my hon. Friend has tried to bring clarity here, it leaves some difficult areas that we would still need to address.

I have already touched on the situation of a young woman who, under the promoter’s proposals, would be expected to use a different level of force to defend herself if she were attacked in a park than if she were attacked in a home. That seems quite wrong and is something that my hon. Friends have tried to address. Law enforcement officers and the courts would have to apply the old test of reasonableness to govern the degree of force if she were attacked in the park or an open space, but the new test if she were trying to stop a burglar in a home where no individual was directly   under threat. That is a clear anomaly that my hon. Friends are trying to iron out. At present the law applies the same test of reasonable force in all such situations. I want to argue strongly that that test should remain. We will have further opportunities to do that in the next debate.

I turn now to amendments Nos. 4 to 9 tabled by my hon. Friend the Member for Ealing, North. The issues that he has covered were raised on Second Reading by other Members who are not members of this Committee. In doing so they exposed some of the many loopholes in the Bill. A particularly stark loophole is that although the title of the Bill includes the words “householder protection”, the Bill itself does not refer to householders and is therefore not limited to householders. It is any person in any building.

I have already made it clear that the Government are still opposed to the Bill in principle. It is unnecessary and based on a misconception that the way to clarify public understanding is to change the law, rather than to improve public understanding of what the law allows. We must have consistency; we cannot allow a situation in which the law would operate differently for a strong person who was in a position to defend himself from how it would operate for a weaker person. In the end, we all rely on good, accessible law enforcement, which can come to the aid of a householder, or anybody, in distress. That is why the additional police officers that we have been able to resource are so important.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

As I stand here now, I do not. I shall seek further advice on it.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

To help the Minister, I cannot find any statutory definition of householder and that is why the Bill is drafted as it is. It continues to make sense for it to be any person and any building.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

In the public mind, a householder would be somebody who was occupying premises and who had lived there for a period of time, even if they did not own the property—perhaps even if they did not technically lease or rent the property. We discussed earlier whether it would extend to the babysitter. I shall seek further advice and come back to the hon. Lady. If the hon. Gentleman, who has assiduously researched the background to the Bill, has not been able to find a definition, I take comfort from the fact that I am in good company in not being able to respond to the hon. Lady, who has considerable knowledge. I am sure she will add some further comments to help us. I suspect that in asking the question, she either knows, or does not know—

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I have a high regard for the Minister. The whole point of not having a definition of a householder in the Bill is surely because it is not intended to be exhaustive. I had hoped that the Bill   would cover the person in occupation of the house, whether that was a visitor or a nanny. That is the point in having the wide term “a householder”.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Yes. That is the difficulty, because the way that the Bill has been portrayed publicly is that it is specifically about the householder. In reality, as the Bill applies, it is not so narrowly defined. Therefore, it moves away from the position of the householder to any person, which reduces the weight of the Bill.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am surprised at what the Minister is saying. He and I engaged in several media debates and presentations, as did another member of the Committee. I made a particular point, all the time, of referring to a householder or a shop owner, and every time I said the word, including in the media debates and on Second Reading, I was assiduous in making it clear that the Bill did not apply just to what we might commonly assume to be a householder.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

But it would require somebody to be in a building, therefore there is still a discrepancy between the person in their home and the person who is outside their home, even though the attack or affront to them may be just as grave and just as severe. There are two tensions: whether it is a householder or any occupant of any building at any time, and the difference between activity in the home and activity in an open space, not a building, where the action may be very severe.

Reference has been made to how often there have been prosecutions in such cases, and we are aware of only a few in which a person has been prosecuted for using force against an intruder. We cannot be precise about the numbers because they are not recorded in a way that helps us to identify the specific cases; we have had debates about precisely how many, but there are very few. The Director of Public Prosecutions has made it clear—the hon. Lady referred to some of what he said—and I will quote him:

“We routinely refuse to prosecute those reacting in the heat of the moment to finding intruders within their homes. So householders who have killed burglars in this situation have not been prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been prosecuted.”

Given the sensible and sympathetic way the courts and the police have interpreted the concept of “reasonable force” the Bill is unnecessary and a retrograde step. I emphasise that I do not criticise the hon. Gentleman for his concern about burglary—both the offence and the plight of the householder—but we have an absolute assurance from the Director of Public Prosecutions that only in the most extreme of circumstances would there be any question of a prosecution taking place.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Does the Minister accept that although very few people are actually prosecuted at the end of a long trawl by the Director of Public Prosecutions, householders in the widest sense of the term have an agonising wait to know whether they will face prosecution? The issue is not how many are   actually prosecuted in the end, it is the trauma caused to those who do not know because the law at present is uncertain. Does the Minister accept that point?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I do not accept that the law is uncertain. However, I accept that the householder—the person who has had the crime committed against them—is in a very vulnerable position and should be treated with the utmost courtesy and respect and given support by the law enforcement agencies and others, including organisations such as Victim Support, that can provide help. One of the reassuring things included in the leaflet published by the Crown Prosecution Service and the police is that they intend in future to ensure that any case of that kind would be handled by a very senior and experienced person. We would all deprecate the kind of long delays in such cases that have been highlighted by the hon. Member for Newark in debates and elsewhere, and we should seek to minimise those delays. Of course, in any case in which there has been a burglary there will have to be a police investigation, because a crime has been committed, but the person who has been a victim of that crime—

Photo of Chris Grayling Chris Grayling Shadow Minister (Education)

On a point of order, Mr. Cook. May I seek your guidance? You will be aware—your comments from the Chair have clearly indicated your awareness— that although this is a serious issue that requires proper debate, Labour Members appear to have been extending their remarks beyond what would normally be necessary to deal with a group of amendments such as this, to the extent that nearly two and a half hours have passed in this first sitting. The business of the House today is complicated, and 10 different votes are due at 7 o’clock, which will take some considerable time out of this evening. The Opposition suspect that the Government are seeking in some way to manipulate this debate for political purposes, either to ensure that it is delayed or to force it to be extended beyond the normal hours. May I seek your guidance on what happens in the event of a prolonged gap at 7 o’clock? Will the debate be postponed to another day and, if so, when? Would that be immediately or—

Photo of Frank Cook Frank Cook Labour, Stockton North 5:00 pm, 9th March 2005

Order. We are debating a private Member’s Bill. As such, it is not susceptible to the machinations of the usual channels. I must allow hon. Members to express their views while they remain within the framework of good order. At the moment, the Minister is trying to give the Government’s view on various aspects of the amendments before the Committee. The fact that it is taking time is largely the result of interventions and questions. To that extent, some of the observations expressed about the Labour Government’s view are slightly out of place.

If we are to continue, perhaps we should suspend the sitting at 5.15 pm for 45 minutes, in order for hon. Members, including myself, to gain sustenance—something to bite and something to sip. At that time, the Committee may be of a mind to seek a sitting on another day as we are compelled to cease our deliberations at 7 pm. As we do not have the facilities   of the usual channels, it is very much up to the members of the Committee to come to an agreement among themselves.

Photo of Chris Grayling Chris Grayling Shadow Minister (Education)

Further to that point of order, Mr. Cook. I am a newer Member of the House and not sure of the procedures that apply, but if the Committee should seek to adjourn till another day, would it normally have some choice over what that day should be and can you give us any sense of how quickly one can obtain a slot?

Photo of Frank Cook Frank Cook Labour, Stockton North

The Member in charge of the Bill, the hon. Member for Newark, has the opportunity under the rules to make suggestions to the Committee. It is up to the Committee to consider them and to agree or disagree with them. If the Committee disagrees, hon. Members will have to come up with an alternative—an amendment.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

As you say, Mr. Cook, that is one area in which the usual channels do not operate. In a spirit of co-operation, I shall try to answer questions and respond to whatever comments are made.

I return to the amendments in hand. The Bill would cover people who use force to protect a building that does not belong to them, such as a shop or a warehouse. For example, it would apply to the use of force on trespassers by security guards in commercial premises. They could act against burglars.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

Would the legislation apply to a bouncer in a nightclub?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

If the bouncer was standing outside the building, the legislation as drafted would not apply because, as my hon. Friend has been at pains to tell us, according to his amendment the person doing the defending and the person doing the attacking would both need to be in the building. The bouncer outside would certainly not be covered, although if we return to the Theft Act—

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I remember it well. That Act’s definition of building would include commercial premises and other premises, such as clubs, nightclubs and so on. I hope that that helps. I assume that it would depend on whether the bouncer was inside or outside the building, but the bouncer would certainly not be a householder seeking to protect his property and his family and children, which is the essence of what the hon. Member for Newark seeks. However, I point out again that what he pursues will produce anomalies and will not necessarily get him what he wishes.

I was explaining that security guards in commercial premises could use the Bill to justify their actions, but that security guards on the high street who were attacked by people using exactly the same force would not be able to use the Bill’s provisions in their defence because they would not be in a building. That is another anomaly.

Similarly, the Bill would apply a different test to persons who were in a building as trespassers—perhaps as squatters, as my hon. Friend mentioned. As   constituency Members of Parliament, we often hear of drug addicts taking over buildings in order to have somewhere sheltered to trade and use their drugs. As they would be trespassing, the new test would apply only if one squatter used force against another in a fight over money or drugs. However, the new test would not apply if a member of the public used force in fighting off an attack by one of squatters on the pavement outside the building. Yes, one squatter fighting off another squatter in the same building could use the Bill; but a decent, law-abiding member of the community outside the building who was being attacked by the same squatter could not. The Bill would not help him.

I am pointing out again—perhaps rather painfully, Mr. Cook, as I see from the expression on your face—the anomalies that the Bill would introduce. In all my dealings with the hon. Gentleman, I have no doubt that his objective is sincere, but he must reflect on the anomalies. We will have the opportunity shortly to hear from him.

The amendments tabled by my hon. Friends would ensure that the new test of not grossly disproportionate force would apply to those in occupation of a building, permanently or temporarily, as a residence. For the sake of clarity they apply to any dwelling—as my hon. Friend the Member for Ealing, North made it clear, that would include caravans, boats and so on. We have debated the word “building” a lot this afternoon. As it is used at the moment, however, it would not include a boat or a caravan.

Once again, we see inconsistencies in the Bill. It would cover householders in some situations but not others, despite the fact that some structures are used as homes for some of the most vulnerable in society. My hon. Friend the Member for Ealing, North referred to people sleeping rough in cars, but the Bill would not protect them. My hon. Friend sought some clarity on where outside the home people could use the provisions of the Bill to their advantage.

The ambit of the provision will be limited by the amendments to all residences, including holiday or other residences, and any other property occupied as a residence. That may be an important consideration, given second home ownership and the use of holiday homes, caravans and so on.

The amendments would ensure that references to houses would cover gardens or other grounds belonging to them—whether or not they had hot tubs, they would all be included. It would be odd if the new test were to apply when the burglar was in the kitchen, but not if he was stealing from the garden or threatening a child or a partner in the garden. That is what the text of the Bill would provide at the moment. If the hon. Member for Newark believes in householders’ rights, then surely he would want to extend his provisions to include gardens, garages and garden sheds—structures that may form part of the property.

The final amendment moved by my hon. Friend the Member for Ealing, North would ensure for the avoidance of doubt that a person cannot be regarded as occupying a house if that occupation arises from the fact that he is trespassing. As I pointed out, the Bill applies the new test that the person who uses the force does not need to be the owner, nor even a legitimate resident. My hon. Friend seeks to clarify that.

The amendments limit the application of the offence. They would make it apply only to householders and not, for instance, to a security guard who found a potential thief attempting to enter a warehouse or other private premises—as my hon. Friend the Member for Ealing, North observed earlier this afternoon and on Second Reading. It would also not apply to anyone who was in someone else’s house—for instance someone who was visiting friends or who was house-sitting while their friends were away on holiday.

In our view, those examples show the fundamental problem with the Bill. Why should the law distinguish between the amount of force that I may use in my house and the amount of force that the hon. Member for Newark may use in my house to defend me if I was being assailed or my house was being invaded? The same test should apply. It is a question of what is reasonable in the circumstances, not whether it is my house or his house, or whether we are inside or outside. Wherever one is, the only test is the reasonable force test.

You have been very patient, Mr. Cook, as has the Committee. I have tried to respond as much as I can. I hope that my comments on what I regard as positive amendments have not given the impression that I agree in any way with the fundamental approach of the Bill. It ought to be clear—it will certainly become clear in other debates—that I remain utterly opposed to the Bill. However, I look forward to hearing what the hon. Member for Newark has to say.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am conscious, Mr. Cook, that I have only a few minutes before the suspension that you rightly ordered. I start by welcoming you to the Chair. I also thank the Minister for all the work that he has put into the Bill; for presenting an extremely reasonable, reasoned and fair case; and for seeking not to extend the time that he took to argue his case. I also thank everyone else, particularly those on my own Benches. As you are aware, Mr. Cook, it falls to me, as the private Member who introduced the Bill, to find those for the list.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I hear the words “pressed men” from behind me, and I should say that I am particularly grateful to the Labour Members on the Committee. Clearly, I have no control over members of other parties, but the hon. Members for Blyth Valley (Mr. Campbell) and for North Durham (Mr. Jones) both volunteered at short notice to help take this important Bill through the Committee, joining all the other volunteers who had come forward. I therefore thank them in particular. The hon. Member   for North Down has also been unstinting in her help and in the clarity that she has brought to these issues, drawing on her experience and background.

The niceties over, I shall endeavour to concentrate my comments on the amendments. If I may make so bold—this is, of course, no criticism of you, Mr. Cook—I am conscious of the fact that the debate has strayed endlessly onto issues that we are likely to debate under other amendments. At this point, therefore, I shall deliberately not pick up some of the Minister’s comments in particular because, with the greatest respect, we may rely on them being addressed more properly later in the debate.

I want now to focus on amendments Nos. 1, 2 and 4 to 9. The hon. Member for Leyton and Wanstead produced a serious of comments that I found extraordinarily difficult to follow. I say that with huge respect, because I like to think that he and I are friends, and we have certainly discussed these issues in the margin previously. His comments were particularly fallacious, given that the Minister criticised amendments Nos. 1 and 2, and I shall pick up on the very arguments that the Minister used.

I think that the hon. Member for Leyton and Wanstead was trying to suggest in the amendments—with respect, I must repeat that the wording is not easy to follow—that the Bill should apply only to those who are in the same building at the same time, face to face, tooth to tooth and hand to hand. The hon. Gentleman used the word “vigilante” which, again, I find extremely difficult to understand. I should underline a point that I have made before: one reason why I decided to bring this private Member’s Bill before the House is because I have witnessed a huge amount of debate in my area of Newark and Retford as a result of the Tony Martin case. I fear, therefore, that words such as “vigilante” are desperately emotive. Unlike the Barras family, who have been deprived of their son, Mr. Fearon’s family, thank God, still have a son to love and cherish, despite the circumstances and despite what one might think of his conduct. If I were to put the word “vigilante” into that excellent organ the Newark Advertiser, I fear, given the background and environment from which I draw my case, that we would be howled at and ridiculed.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

Does not the hon. Gentleman acknowledge that the wording of the Bill gives scope for vigilantes? It uses the phrase:

“Where a person uses force in the prevention of a crime or in the defence of persons or property on another”.

It does not talk about a householder. A householder could bring in someone to act as a vigilante.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am grateful to the hon. Gentleman, but I do not think that that is right. I do not want to detain the Committee by defining the word “vigilante”, but the fact remains that if a person—whether a vigilante or someone who has been hired as a hit-man or something of that ilk—acts improperly, going beyond the provision of gross disproportionality, they will be tried under the Bill. If they are tried successfully, they will go to prison.

Sitting suspended.

On resuming—

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am most grateful for the break. I have no doubt that you enjoyed it as much as I did, Mr. Cook. I have a few remaining comments about amendments Nos. 1 and 2. I had almost finished criticising them—I will not say condemning them because that would be unfair—on the basis of the points already made by the Minister.

If the amendments are accepted, it will be impossible for a father tending to plants in his garden or walking the dog late at night, who detected a burglar while his children were inside the house, to enjoy the protection of the Bill. That is a straightforward case, but let me go further. Sometimes, my wife and son, when he is back from school, are inside the house, and I am outside as night falls trying to shoot rabbits with the only firearm that I now handle, namely, an air rifle. The hon. Member for Leyton and Wanstead made a good point. If I detected a burglar or intruder inside the house and, for the sake of argument, peered through the window, believed that the person was robbing my house or looking thoroughly unpleasant, stuck a shotgun through the window and fired at the man or woman, I would have acted grossly disproportionately and would be liable to prosecution under the Bill as I have written it. Therefore, the two amendments are needless and would detract from the strength of the Bill.

The various suggestions made by the hon. Member for Ealing, North are more complex and pose a more difficult problem. We know each other well, and I am conscious that the issue of householder protection has caused him difficulty in the past—I shall not needle him about that because it has already been done and it is improper.

The title of the Bill caused me a problem. It had to make sense and to attract the public’s understanding. The hon. Gentleman’s suggestion, which was flippant but based on rational thought, was that the Bill should have a long and complex title to cover all eventualities. We did not go for that, because it would not have aided or abetted my aim of making the Bill understood to the voting public. That is why “householder protection” is in the short title of the Bill. However, the point has already been made that it would cover not only householders, but any person in any building such as, I would hope, shop owners and babysitters. Although I understand that some of the amendments are intended to be genuinely helpful and to throw light on the way in which the Bill has been drafted, I will end up rejecting them all.

It is clear that, in essence, amendment No. 4 would emasculate proposed new subsection (1A) by adding paragraphs (a) and (b). As I said earlier, inherent in the cause and design of the Bill is protection for householders and shop owners. At no stage before the Committee stage have I referred to anything other than that. If amendment No. 4 were to stand, the Bill would not cover shop owners, and that would not   make sense. Furthermore, without rehearsing arguments that we have already covered, it contradicts amendment No. 6, which I shall come on to in the fullness of time.

In amendment No. 5, the hon. Gentleman attempted to define the meaning of “house”. The hon. Member for North Down made the point much better than I can—I am no lawyer, heaven forfend—that it is already clearly defined in the Theft Act 1968. Furthermore, the burglary and aggravated burglary section of “Archbold”, a tome from which I never thought I would quote, defines “building”. If we can make no reference to existing law, if every detail must be written down, redefined and spelled out, why do we have laws, and why did we take the language from criminal law when we were drafting the Bill? The definition in chapter 21-117 states:

“Any building or part of a building may be the subject of burglary; also an inhabited vehicle or vessel whether the occupier is there or not at the time of the offence. This includes houseboats and caravans which are regularly inhabited even if empty at times.”

Therefore, “Archbold” and all the comments contained therein make amendment No. 5 redundant. We have a clear definition of “building”, and it would be otiose to spell it out again in the Bill.

Photo of Steve Pound Steve Pound Labour, Ealing North

The Bill seeks to amend the Criminal Law Act 1967, and we are referring to the Theft Act 1968. I do not disagree with the hon. Gentleman’s analysis and definitions, but would not it have been simpler to say in the Bill that the definition of “house” is the one in the 1968 Act? Had he done that, we could have saved ourselves the problem about what would happen if it were a public building, an office or any of the other myriad and marvellous structures that we have created before our eyes this afternoon. Had he thought of doing that?

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

The hon. Gentleman makes a good point, as always. He is a simple sailor, I am a simple soldier. We understand each other in straightforward English as we speak it. Neither of us, I am glad to say, has need frequently to refer to lawyers.

Photo of Steve Pound Steve Pound Labour, Ealing North

Let us not tempt fate.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

Not yet.

However, with respect, the law is not interpreted by simple people such as us. Lawyers, whether barristers or solicitors, will understand the Bill’s phrasing in a way that I do not. I do not mean to sound over-simplistic. It would be wrong and a lie for me to say that I sat down with my pen behind my ear and prepared the Bill without expert advice—of course I did not. I wish I could, but I do not have the talent, experience or skill. However, I am reliably informed by the several QCs who assisted me in drafting the Bill that its wording takes in everything that the hon. Gentleman has suggested. If he wishes to probe me further, I fear that I am at the absolute limit of my understanding of legal language and could therefore   attempt only to repeat exactly what I have said. Moving on, unless the hon. Gentleman wishes to probe further—

Mr. Poundindicated dissent.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I thank the hon. Gentleman.

I have already referred to the fact that I think that amendment No. 6, to an extent, contradicts amendment No. 4. I have spent more time perhaps than I should skulking around bushes, gardens, ditches and the out-houses of other people’s houses. It is clear to me that the ability to misinterpret actions in gardens and similar areas is much greater than inside a house for no other reason than that, if darkness reigns and someone is in a garden, it is unlikely that they will be illuminated quickly and that that their intentions will become clear quickly. Inside a house, it is much more likely that a light will be put on or a torch will be shone on them.

I reject amendment No. 6 not only because of the contradiction that has already been noted but because of the fact that we deliberately wish to avoid any misinterpretation. For instance, a party of army cadets might rightly and properly cross a garden by mistake, armed, in the middle of the night. Their intentions would be entirely honourable. It is a wholly different matter to try to legislate for what goes on in a garden, a field, a meadow or whatever. That is why we have crafted the Bill, and I use the phrase advisedly, as carefully as we have.

We have already touched on amendment No. 7. With the greatest of respect to the hon. Member for Ealing, North, this is the one amendment that made me scratch my head, and it is the reason that I questioned him so tediously and closely about exactly what he thought of the examples of the shop owner and the babysitter. The Bill takes both categories into account. I know that the hon. Member for North Down will feel strongly on the subject, but one of the biggest examples of crime in my constituency is the breaking into places such as pharmacies and chemists, where drugs are kept, by those who steal them to sell or to use themselves.

I have had any amount of representation from shop owners that the Bill should cover their premises. That is why I have been so careful to point out that this is a householders and shop owners protection Bill, although I can quite understand the criticisms. If I agree to amendment No. 7, we will not cover shop owners. We will not cover babysitters. There are a host of other examples, and I fully appreciate that.

Mercifully, my son is well beyond the stage where he needs a babysitter, but I believe that the hon. Gentleman has a young son. If a babysitter in his house is charged in loco parentis with the protection, well-being and general good of his child, should that babysitter not be effected the same protection as any one of us and, indeed, as the hon. Gentleman? They should. That is why I must reject amendment No. 7.

Photo of Hugo Swire Hugo Swire Shadow Minister (Culture, Media and Sport)

If we were to adopt the amendment, does my hon. Friend not agree that it would leave housesitters—that category of people increasingly   used by people who go on holiday or are posted away to look after a premise, but who technically do not occupy the house as their residence—open to prosecution? They would be there as anyone working in that house would be, like an au pair or a babysitter, and would be unable to carry out the job of protecting the premises as they had been employed to.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

As usual, my hon. Friend makes an extremely good point that had totally eluded me. In my constituency, we have a number of Royal Air Force married quarters. I do not know whether it is a good or a bad thing, but the RAF is heavily used on operations at the moment. Its pilots and air crew are incessantly abroad fighting, in my belief, for a good cause. He is quite right: those married quarters are frequently left with housesitters or quarters-sitters—whatever we call them. If we agree to amendment No. 7, those housesitters, babysitters and shop owners will not have the protection that I hope that the Bill will offer.

Photo of Steve Pound Steve Pound Labour, Ealing North 6:15 pm, 9th March 2005

That is interesting. The hon. Gentleman has posited two different sets of circumstances, one involving a commercial premises and the other involving a housesitter or babysitter. The latter deserves further consideration because I doubt that there is anyone in Committee who disagrees with him when he says that we should include those people who occupy premises by express permission of the householder. However, he has chosen to define his Bill in terms of the motive that the person has for entering the building. He has used the word “trespasser”. A person does not trespass when they go into a shop, but they could still assault the shop owner. Does he not realise that a lack of definition—if not a lack of clarity—creates problems? Shop owners will not be protected because the hon. Gentleman defines entry in terms of trespass.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

Again, I am no lawyer, but I believe that, if a shop has an open door—I am looking for some help—clearly, the shop owner is inviting a person on to their property, albeit without having to articulate that. The fact that the door is open is enough. However, if an offence is then caused on that property, I believe that that can be defined as trespass.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am happy to assist the hon. Gentleman. We have spent quite a bit of time talking about the fact that there is some confusion over whether the word “building” is too wide in its definition because it covers shops. It is well established in law already that, when it comes to sentencing, there is a distinction between burglaries of dwellings and burglaries of non-dwellings, meaning shops. I am repeating myself slightly, because I have already referred to the practice direction, which was printed in 2002. There are separate guidelines for sentencing those involved with burglaries of dwellings and burglaries of non-dwellings.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am awfully grateful to the hon. Lady. I hope that her intervention throws more light on the subject than I could, with my limited background in and understanding of these subjects.

We have already touched on amendment No. 8. We are talking about any person in any house and that includes those who might be in temporary residence in a house. I have dealt with that enough already. The situation is similar with amendment No. 9. I hate to quote from this tome but in “Archbold” on page 1953, chapter 21-116—

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

No, I am not. I am loth to pretend to be something that I am not—although that seems to involve me 24 hours a day at the moment.

Photo of Steve Pound Steve Pound Labour, Ealing North

Does that apply to your politics?

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

It is up to the hon. Gentleman to judge.

“Archbold” defines trespass and entry as a trespasser in some detail. It states that

“a person is a trespasser for the purposes of section 9(1)(b) ... if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless whether he is entering in excess of the permission that has been given to him to enter, providing the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission”.

That is sufficient for the jury to decide that the person is in fact a trespasser. The hon. Gentleman can probe me as much he wishes. All I can say to him and to others on the Government Benches is that I have been given this advice by a series of extremely well versed, knowledgeable QCs, who understand these things better than me. That is the definition of trespass. If we try to define it in any other way in the Bill, that will detract from the Bill. Amendment No. 9 is therefore unnecessary and I will seek to reject it.

You have been very patient, Mr. Cook, listening to my long-winded explanation of why we will resist the amendments. There are other debates to come, and I do not wish to trespass on them. The fact remains that with this Bill I have enjoyed a huge amount of sensible co-operation from hon. Members on both sides of the House. I honestly believe that the Bill enjoys the support of 90 per cent. of the population. That is what the polls tell us anyway.

I do not seek to gain party political advantage. I seek to reassure ordinary citizens that they will be protected by the law, and to deter burglars from entering houses, dwellings or any building. If we can reassure and deter, it should lead to a decrease in the sort of bloody affray that we saw in Norfolk some years ago, which has left scars upon a Norfolk farmer and a Newark lad. If we can achieve that, we will have taken steps in the right direction for all parties and for any party that ends up in government.

Although I respect the reasoning and the thoughts behind the amendments, I ask the hon. Gentlemen who tabled them not to press them to a vote, so that the Bill can continue unamended.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

The hon. Member for Newark has asked whether the amendment can be withdrawn. Before I come on to that, it was very interesting, in quoting at length “Archibold”—[Hon. Members: “Archbold.”] That is interesting, because that name is very similar to that of a horse running in next week’s Champion Hurdle at Cheltenham. Perhaps it is an omen and I should get a few bob on it.

My hon. Friend the Member for Ealing, North and the Minister pointed out, as I tried to do in my contribution, that there were many anomalies and flaws in the Bill. I do not want to repeat those, Mr. Cook, as I can see that you are getting a bit irritated. The Minister said that there were difficulties with my amendment. He mentioned the point about the father who is outside and the children who are inside the building. That was repeated by the hon. Member for Newark, and I take that point on board. It shows the complexity of and difficulty in making the Bill coherent.

We could argue that the Bill itself has similar difficulties. The father could be anywhere, but the burglar who is frightening the children could be escaping and off the premises, so that would create difficulties with the Bill as it stands. My amendments were probing, and if those or similar matters need exploring we will wait to see if there is an opportunity on Report. On that basis I am prepared to withdraw my amendments.

Photo of Steve Pound Steve Pound Labour, Ealing North

I found sitting in Committee very educative this afternoon. I am grateful to the hon. Member for Newark, who promoted the Bill, for the   generosity and good spirit with which he has pressed his proposed legislation. I am grateful also to the number of distinguished members of the Committee who have intervened, particularly the hon. Member North Down, whose comments have been extremely helpful—I dread receiving the bill. However, there is no vast difference between the members of the Committee.

My amendments were intended to enlighten rather than destroy. We do not disagree on the subject. In the certain knowledge that we will discuss it further, and in recognition of the decency shown by the hon. and gallant Member for Newark, who clearly seeks to reassure rather than frighten, and to address an issue of fear throughout the land, with your permission and that of the Committee, Mr. Cook, I shall not seek to press my amendments to a vote.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I beg to ask leave to withdraw the amendment.

Motion made, and Question proposed,

That further consideration of the Bill be now adjourned.—[Patrick Mercer.]

Question put and agreed to.

Motion made, and Question proposed,

That the Committee, at its rising this day, do adjourn till Tuesday 15 March at half-past Nine o’clock.—[Patrick Mercer.]

Question put and agreed to.

Adjourned accordingly at twenty-six minutes past Six o’clock till Tuesday 15 March at half-past Nine o’clock.