European Union Referendum Bill
Lord Blencathra Excerpts(10 years, 9 months ago)
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Lord Liddle
No, I do not agree. Britain should not push unreasonable demands in the next 12 months on top of the very real issues the European Union has to deal with: resolving the long-term issues arising from the euro crisis—the short term has been resolved—and putting together the more Europe that we need effectively to tackle the migration crisis. Those are very serious problems, and Britain is getting in the way of solving them. That is an added reason for the Government to be honest with the people about the feasibility of the fundamental reforms that some noble Lords appear to think are possible—they are not.
Lord Blencathra (Con)
I support my noble friend’s amendment because I do not believe that the British public should be bounced into a snap poll. There has been talk by some spin doctors—probably around the edges of the staying-in campaign—that a quick poll in 2016 would be advantageous. They seem to feel that the longer the electorate has to consider whatever deal the Prime Minister brings back from Brussels, the more likely it is that the electorate will vote against it. I suggest that some people may perceive that there is an incentive for the Government to try to rush the poll as soon the Prime Minister says that he has a deal that we can sell to the British people and we should stay in.
Everyone rightly says that this is the most important vote in 40 years—and maybe for the next 40 years. Therefore, the pros and cons must be given very careful consideration. The Government will have to set out their case. There are amendments on the Order Paper asking for a White Paper-type document which sets out not only the facts of the deal that the Prime Minister has achieved but the consequences of staying in and the consequences of leaving.
That document will not be like party-political manifestos, which set out the already well-known policies of the political parties. Manifestos may have a few nuggets of new information but no real surprises on the political direction of each party. Thus, one can get away with publishing a political manifesto two or three weeks before an election and the public are not really kept in the dark by that short timescale. The document that the Government will publish on the EU referendum will not be like a party-political manifesto. It crosses all party boundaries and there is no clear policy decision known in advance of the deal that the Prime Minister will get.
We have no idea what the deal will be. There may be big concessions or there may be small, trivial, cosmetic ones. The consequences of staying in or leaving will be immense, and both campaigns will have to issue their own views on the deal and conduct big public debates on it. That process cannot be rushed; we would be doing a huge disservice to the public. Nor does my noble friend’s amendment call for an indefinite delay. Announcing a date 10 weeks hence seems to be a reasonable period of time for all the relevant documents to be published and the debates to be held. It does not hold up any poll indefinitely.
We have all been discussing the possibility of a referendum on Europe for years. When this Bill becomes an Act, we might just be a minimum of six months away from a poll, and it may possibly be on a date two years from now; so in relation to that long timescale that we have been discussing and that we might face, a period of 10 weeks to give proper consideration to the deal and its consequences is nothing in comparison. I support my noble friend’s amendment.
Lord Davies of Stamford
I had not quite finished my remarks. I will do the noble Lord the courtesy of replying to his intervention. We both agree on the need for coherence. I totally agree that we do not want to make another piecemeal change, which is why I suggest that we make a universal change. In my view the Government should take the opportunity to say that they will legislate as soon as possible and bring forward legislation that will enable us to reduce the age of the franchise for Westminster elections—indeed, for all elections in this country.
Lord Blencathra
My Lords, I oppose these amendments. I appreciate the Government’s position that they had to select an electoral register that would be appropriate for this referendum. No one register is perfect. Clearly the one used for the EU elections is not appropriate, nor is the one for local government elections. Therefore, I accept that the one used for the last general election is probably as good as any because it is based on the age of majority.
I believe that, whatever amendments we make, we should stick with the age of 18. We have to pick an age somewhere and there is nothing magical about reducing it to 16. One of the arguments advanced is that this referendum will affect that generation for 40 years. If it affects 16 and 17 year-olds for the next 40 or 50 years, then it affects 15 year-olds, 14 year-olds and 13 year-olds, many of whom are equally switched on and with it and know what is going on. Yet there is no suggestion that it should go down to that age. If the argument is based on the referendum affecting millions of young people, there is no logical reason to stick at the age of 16.
The other argument used is Scotland. The argument that we have heard tonight is that there are so many enthusiastic young Scots. Scotland is recommended because it made young people enthusiastic for voting and for change and that we should therefore follow the Scottish example. I profoundly disagree. Just because Scotland did it does not make it wise or right. When I was aged 16 in Scotland in 1969 I was heavily involved in politics. I was enthusiastic, keen and reasonably well informed. I had absolute certainty, not just on how this country should be run. I even had suggestions on how Chairman Mao should amend some of his little red book. I knew what Mr Brezhnev should do to make the Soviet Union better. I had a wide range of enthusiastic views, but thank goodness I was not in a position then for the Government to be inflicted with my vote or for my childish enthusiasms to be put into law or enacted.
There are very few areas where we treat 16 as the age of majority. That is quite telling. Indeed, we treat 16 and 17 year-olds as children with no real say of their own in a large number of areas. What are those areas? Sixteen year-olds can get married, but only with their parents’ consent, although Scotland is different. While 16 year-olds can marry, they cannot buy a kitchen knife until they are aged 18. I know that for a fact because I was the Minister who put that law through, for some reason or another. Sixteen year-olds can join the Army, but only with their parents’ consent. They cannot go into combat until they are aged 18.
So what can they not do until they aged 18? They cannot buy tobacco or alcohol. They cannot gamble. They are too young to be sentenced to a young offender institution because the law regards them as children. They cannot legally watch a film with an 18 classification. That is a telling point. If our law considers them too young to watch a violent or pornographic film, how can we say that they are capable of making a decision on major political issues? They cannot serve on a jury. If they are regarded as incapable of exercising judgment there, why are they able to exercise judgment on national political matters?
Lord Foulkes of Cumnock
Did the noble Lord make exactly the same speech when the voting age was lowered from 21 to 18?
Lord Blencathra
I did not make that speech. I was in no position to make it. I cannot recall what my views were. I was not a Member of Parliament then and I certainly was not in this place. My point of view now is based on what the law currently is for the age of majority and why Governments and both Houses of Parliament have accepted 18 and granted all these rights to people only when they reach the age of 18.
Let me briefly conclude on this point. Until you are aged 18 you cannot open a bank account in your own name. You cannot even get a tattoo, buy fireworks or make a will. You cannot even carry an organ donor card or use a sunbed for tanning. You cannot stand as a Member of Parliament until you are aged 18. If we lower the voting age to 16 are we then going to allow people to stand as a Member of Parliament when they are 16? There are a range of other examples but I will not bore the House with them.
Baroness Young of Old Scone (Lab)
I was born in Scotland and I was brought up in a Scottish Conservative household. When I was 16 I thought that the election result, when a Labour Government was returned after 13 years of what is now known as Tory misrule, was the end of the world. I had been taught to believe that. Two years later I was canvassing for Labour in the election.
What changed me was that at the age of 16 I could get pregnant. At that time I could not get birth control in this country at that age. During that period, when I was aged 16 or 17, the first Brook Advisory Centre opened in Edinburgh. I could then go on the pill. Quite frankly, it was probably the best thing that ever happened to me. The knowledge that I could not get proper support for being sexually active—I had had a good Scottish diet and was very precocious for my age—was what politicised me. I have no qualms about announcing that here tonight. It is a real insult to people aged 16 and 17 to believe that, when they are in a position where they make crucial decisions about their own future, they cannot make a crucial decision about the future of this country in Europe.
Lord Blencathra
There is a lot of detail there and it is a route that I dare not step down. Whatever language or terminology I try carefully to choose, I will inevitably offend someone somewhere. That is not a risk I wish to take. I simply say that the fact that one can get the pill at the age of 16—rightly so—is no justification for saying one should therefore have the right to vote.
I concluded with a list of all the things that Parliament has decided that people can do only when they are aged 18. Some sound so trivial, but if that is what Parliament decides, it is perfectly legitimate to say that the age of majority is fixed at 18 and that we should not lower it for the purposes of this referendum.
Just because young Scottish people aged 16 and 17 were enthusiastic, it is irrelevant to deciding on this matter. Politically, we know why the SNP Government lowered the age. It is because their private polling suggested that 16 and 17 year-olds would be twice as likely to vote for independence as for staying in the union. You can bet your bottom dollar—or your pound Scots—that if their private polling had been the other way around, the Scottish Government would not have lowered the voting age to 16. They would have kept it.
If these amendments are passed, accepted by the other place and become law, we will have 16 and 17 year-old Commonwealth and Irish citizens also being granted the right to vote, because they are included on the register. If some noble Lords’ amendments to include European citizens were passed as well, we would have 16 and 17 year-old children from European countries also being allowed to vote. If we get a close result with that scenario, I think a lot of British people would be outraged that a majority of 200,000 to 300,000, either way, had swung the vote, because of the inclusion of 16 and 17 year-old European, Commonwealth and Irish citizens. That is a rather dangerous route to go down. However, we may be able to talk about that later.
I oppose these amendments because the age of majority is 18. It should stick at that but if we want to change it we should do it in a general Bill relating to the franchise. We should then take a close look at all the other things that these 16 and 17 year-old children cannot do, because, if we lower the age of majority to 16, we should change the law on a whole range of things from buying knives to buying a pint.
The Earl of Listowel (CB)
My Lords, I feel passionately about this issue. I have been wondering why that is the case, especially as so many people that I respect hold exactly the opposite position to myself. Principally, it is because I have often seen, over many years, young people in care being allowed to make decisions that are not age-appropriate. A local authority will, quite commonly, offer a 16 year-old in care a flat of their own and a sum of money or the choice to stay with their foster carer. Many choose to take the flat and the pot of money. We are told that in many cases, drug dealers befriend and move in with them, or they cannot manage to meet the rent and they lose the flat. I spoke to a foster carer who said that her foster daughter was doing so well in school before a local authority offered her a flat of her own; now she is doing very badly in school and the carer does not know how she is doing in her flat. One of the reasons I feel so strongly about this amendment is that I am concerned about whether this is an age-appropriate decision—although clearly children are not going to harm themselves, in the way that children in care apparently can often be harmed by being giving decisions too early, in this particular case.
I listened with great interest to my noble friend. I have sympathy for his concern that this is a very long-term decision that we are coming to as a nation, which will affect the young people in question particularly. But I am afraid I disagree with him; I heard the speech of the noble Lord, Lord Tyler, differently. I respect the great depth of knowledge and the effort that the noble Lord, Lord Tyler, has put into this issue; I have heard him speak about it on many occasions. My sense, is that for him, at least, this is part of a project—not just an issue for this particular referendum Bill but more generally—to lower the franchise. I feel really concerned about that, although there are many people I respect who think it is the right thing to do. Some child development experts would agree with them, while others would be concerned.
There is concern about the impressibility of 16 and 17 year-olds. Some of your Lordships may remember the film “All Quiet on the Western Front”. It begins in a schoolroom, with a teacher talking to young people and enthusing them with notions of the greatness of their country and the importance of fighting for it. It then follows their careers in the Army. Your Lordships may remember that in the Chinese Great Leap Forward young people were targeted and used as the force for taking that forward. Your Lordships may also remember how effective, in the 1930s, some nations were at manipulating their youth to do things none of us would agree with.
There has been concern about growing nationalism across Europe and there are increasing pressures. Thankfully—and tribute should be paid to the Government and the coalition Government before them—we have avoided the serious unemployment which is a large contributory factor to this. But at some future date we may not be so fortunate. It concerns me that we are painting a target on the back of our young people by giving them the vote at the ages of 16 and 17. There are people who are very good at using the internet to manipulate people, and 16 and 17 year-olds, as we know, have been vulnerable to this in various ways.
I am also concerned about the wider ramifications for children around the country. Noble Lords have spoken from experience, which I cannot yet do, about their own children. Of course, many children will not have had the support that I hope your Lordships will have had—I hope I am not speaking out of turn. I am thinking particularly about the work the noble Lord, Lord Faulks, took forward recently during the passage of the Criminal Justice and Courts Bill. The noble Lord listened to the concerns of parents of 17 year-olds who had been held in custody in police cells. They were sometimes held over the weekend for two nights and, regrettably, a number of those young people had taken their own lives after that experience. The noble Lord listened to those concerns and acted promptly to change the law. I was pleased to learn, recently, that it had changed and that 17 year-olds in custody will be treated as children.
The last time that we debated this matter, Barnardo’s produced a briefing in which it sought to change the Children and Young Persons Act 1933. In that Act, the age of majority is 16 and Barnardo’s wanted to see it raised to 17. In aid of his approach, the noble Lord, Lord Tyler, put forward the argument that if you are old enough to marry and join the Army at 16, you should be able to vote. Others may say that if you are old enough to vote at the age of 16, you do not need to be treated as a child and can be put in a police cell at the age of 17. If you are old enough to vote at 16, maybe it is not so outrageous to have an age of criminal responsibility of 10—the lowest in Europe: I think the average age is 14. I am concerned from that angle.
I conclude with my concern about child development issues. These children are in the middle of adolescence, which is a very interesting period. I do not want to be too technical and maybe this will be quite obvious to most of your Lordships. Young children are very attached to their parents and to their siblings. In adolescence, they make a move from that attachment to an attachment to their peers and eventually to a romantic partner of their own. That is a huge change, which will play out in many different ways. Partly, they will react against their parents. Quite often they will take polar opposite views and values to their parents—for some time, at least. I can think of that in my own family history. My father grew up in a landowning family; he was an aristocrat. When he went to private school, he became the school’s only socialist, reacting very strongly against the ideals of his parents. He moderated over time.
We are not talking about young people voting Labour or not, but I worry that if we set this precedent it will be used on other occasions. Young people may be more likely to vote for Labour or the Liberal Democrats—parents tend to be more conservative, so their children may be reacting.
Lord Blencathra
It may be that 15 million people go to Spain every year but none of them gets the right to vote in its elections.
I am probably more naive than my noble friend Lord Hamilton, but maybe not quite simple. I am not suggesting this is a deliberate ploy to stack the electoral register to help the stay-in, BSE campaign. That may not be the intention but there is enormous cynicism out there in the country about politics, politicians and a fear that we will somehow, as politicians, stack things so that we stay in. That is why there is concern about whether Europe will spend money on the campaign and whether Ministers and others will use their position to campaign for an in vote?
They may not, and there are purdah rules to stop it, but the view in the country is a rather cynical one that politicians cannot be trusted to have a proper, fair electoral referendum. If there is a majority of 10 million either way it will not matter, but if the majority to stay in or to leave is 1 million or 1.5 million, and 1.5 million EU citizens have voted, it will not take much to see that the British public will say it was rigged, they “woz robbed”, and the whole election result was unfair.
I repeat, as many others have said, that no other EU country permits non-nationals to vote. The noble Lord, Lord Hannay, who is expert in these matters, tried to draw a distinction between this referendum, which could result in Britain leaving, and other national referenda on less important issues. I beg to differ on a couple of occasions. When the Danes voted against Maastricht it was a nuclear bomb under the EU at that point. The Danes were told to think again and keep voting until they came up with the result that the EU wanted. That is me being cynical on this occasion. If Denmark had not voted again—
Lord Davies of Stamford
Will the noble Lord address the point that I made in my intervention a moment ago? Although it is true, as he says, that no other EU country grants the right to British citizens who are resident there to vote, it is also true of Commonwealth countries. No Commonwealth country grants British citizens who are resident in their country the right to vote, so why does he justify the anomaly that we are extending under the regime that he is defending—the right to vote in this referendum to Commonwealth citizens but not to citizens of fellow EU member states?
Lord Blencathra
The noble Lord is little premature. If he is still here in half an hour, he may hear my speech supporting the noble Lord, Lord Green of Deddington, as he seeks to remove Commonwealth and Irish citizens from the register. I hope that the noble Lord will be here to support that amendment.
I was concluding by saying that the vote on Maastricht would have been a devastating change to the EU. I had no idea what the consequences would be. Denmark would not have been thrown out, of course, although I heard one EU commissioner at the time saying that it would be if it did not comply. That noble Lord is no longer with us.
When the Irish voted against Lisbon, again that was mega bomb under the EU and the Irish again had to vote until it came up with the right conclusions. I speculate, if Ireland had not voted again on the Lisbon treaty, would the treaty have gone ahead or would Ireland have been put into a second-class category? I do not know but it was a mega decision that Ireland and Denmark took, so I do not think that we can say that this referendum that we are having in Britain is more important than some other European referenda.
Lord Hannay of Chiswick
This situation is completely different. In the case of the Danish and Irish referendums, had those negative results been upheld, the only consequence would be that a treaty called Maastricht or Lisbon would not have come into force. Nobody would have had any rights, privileges or advantages removed from them. The whole of the European Union would merely have stayed where it was.
The noble Lord is quite right in saying that Denmark and Ireland would not have been chucked out. At that time there was no machinery to do that. There was not even a withdraw clause, but it would not have happened. The point is very simple. The result would have simply been—as was the case in the vote on the constitutional treaty in France and the Netherlands—to negate something that might have come into effect had it been ratified. This is completely different. Here, you are taking away various important rights and privileges that European citizens here have as a result of our membership of the European Union. You are depriving them of those things. It is honestly not like for like.
Lord Blencathra
I do not accept that if there is a decision to leave we will be taking away some fundamental rights from European citizens who are living in this country and that they should therefore have a right to vote in the referendum to protect those rights. On Report we may have a list of what those rights may be. I can understand the noble Lord’s point that there is a difference in quality or perhaps in quantity in these referenda, but I do not accept that the referenda in Denmark and Ireland were of a vastly different magnitude to this one. We could not vote in the Danish referendum and rightly so. I did not want the right to vote in the Danish and Irish referenda, and I do not see how this referendum is so different that other non-British nationals should have the right to vote in it.
Baroness Smith of Newnham
There are two fundamental differences. One is in terms of ratification of a treaty. Each member state gets to ratify the treaty according to its own rules, be that by referendum or through Parliament. In this case we are talking about the rights of people who are resident here. There are different immigration rights for EU nationals versus third-country nationals. People who live and work here as EU nationals on the basis of free movement are surely in a different situation from other residents of the UK. What will employers be required to do if Britain leaves the European Union? Are EU nationals going to be allowed to work here?
Lord Blencathra
If Britain votes to leave, a whole range of things would need to be decided and negotiated. No one is suggesting that on the day or within a couple of years of Britain voting to leave, all EU nationals working here would be slung out and not allowed to work. A British Government would make a determination by looking at each case of employment and refugee status—at a range of issues that could be decided on individually. It is not right to say that we are back at square one and that if we vote to leave, all the rules related to other people working in this country go back to 1973.
Lord Liddle
If decisions are taken individually, that implies that some EU nationals will be thrown out. Is it the Government’s position that if we vote to leave the EU, some EU nationals may be thrown out?
Lord Blencathra
I do not want to get totally bogged down in this argument. I was asked a hypothetical question: what would happen to those people if we voted to leave? I was given a hypothetical answer: it would be up the Government of the day to decide the rules on employment in this country for people from any other country. I was not suggesting that the Government would throw people out. They may decide unilaterally that all 1.8 million should stay and maybe we should add a couple of million more. It is a totally hypothetical issue but it does not detract from the argument that no other country allows non-nationals to vote in important national referenda. We should follow that example.
Lord Liddle
It is not a totally hypothetical issue. If you listened to Mrs May’s speech at the Conservative Party speech, you might have thought that there was a certain desire to throw out people who were not British citizens. There is a real question: what is the future for EU nationals in this country if we vote to leave? If the Government are not prepared to give an honest answer, of course people are going to demand a right to vote in this referendum.
Viscount Ridley
If we vote to leave that argument will continue, but as my noble friend Lord Blencathra said, that is when we will deal with it.
Lord Blencathra
My Lords, I agree entirely with my noble friend. I could not say it better myself so I shall shut up and conclude my remarks.
Lord Shipley (LD)
My Lords, I said at Second Reading that there was a very important principle at stake in this issue: that those who will be directly and personally affected by the outcome should be entitled to a say in the decision. I stick by that principle because it is exceedingly important.
I am grateful to the noble Lords who tabled Amendment 13, which defines the five-year rule, because I had wondered whether it was justified for shorter-term or seasonal workers to have the right to vote. In the Scottish referendum people who had lived in Scotland for less than five years had the right to vote because the local government franchise and electoral roll were used. I am unaware of any trouble or problems caused by the fact that EU residents living in Scotland had the right to vote.
The compromise proposed in Amendment 13 is entirely reasonable. It gives the franchise to those who can demonstrate a longer-term residency commitment to the UK. I assume that it means five continuous calendar years, as opposed to any five calendar years, but on that basis—and the fact that people will have to prove residency for five years, which in itself might be a complicated task for some—it seems entirely reasonable.
I noticed that in the contribution from the noble Lord, Lord Green of Deddington, we had the accusation that no other country does this and that we therefore should not. Of course, nothing ever changes if you always have to abide by what other people do. As we heard, Austria permits votes at the age of 16. Somebody took the lead there. It seems to me that there is nothing wrong with the United Kingdom deciding to make its own decision about how it wishes to conduct a referendum.
Lord Blencathra
My Lords, I want to give tentative support at this stage to the noble Lord, Lord Green, and his amendments. Some of us argued in the previous group that there is no justification for non-British citizens, such as EU citizens, to vote in a British national referendum. Indeed, I think that is the Government’s position. All logic, therefore, would suggest that other people who do not have British nationality should not be permitted to vote either. I understand that there are about 3.4 million Commonwealth, Irish and British Overseas Territories citizens in the UK with a right to vote. However, about 1.8 million of these are British citizens and have British nationality. I have no problem with that whatever; indeed, I warmly welcome it. If more people who came to live in this country took British nationality it would possibility reduce some of our other integration problems. To me it is quite simple—maybe noble Lords would say simplistic: if you live here and do not have British nationality then you should have no right to vote in British national elections on a national referendum.
We know how this has come about with the Commonwealth. Many of the Commonwealth voting rights were granted a bit shambolically and haphazardly as Britain decolonised and withdrew from Empire. We understand that. It is a legacy of imperial times and should have no place in our democracy today. We cannot justify a Commonwealth citizen with no connection to the UK, arriving in the UK, registering straightaway and getting a right to vote a few weeks later. No other country in the world does that except ours.
I am now going to make a slightly contrary argument and this is why I say my support is tentative. I think the Government have probably got the right policy in sticking with the electoral roll they suggested. However, and it is slightly hypothetical, if by the end of this process, after ping-pong with the other place we end up with 16 year-olds and EU citizens allowed to vote, it would be outrageous then to allow Commonwealth citizens who are not British nationals to vote. That would be perceived by the British public as really stacking the election. If the 16 year-old vote goes through and is accepted it would then mean that young Commonwealth citizens aged 16 arriving in the UK could quickly register and vote.
I go back to the point that has been made a few times in this House tonight by me—I apologise for making it again—and my noble friends. We want this referendum to be seen as valid, fair and with no jiggery-pokery. If the result is close at a few hundred thousand or a million, then people in this country will look for scapegoats and will blame the various foreigners or young people who have been allowed to vote. I am sorry that the noble Lord, Lord Wigley, is not in his place. He was right to raise the spectre of racism. In the last year because of immigration, asylum and the huge movement of people around Europe we have seen more antagonism in this country towards foreigners than ever before—people perceived as coming here from Europe without any right to do so or the fear of a “swarm”. If the message goes out after this referendum that young people from Europe or Commonwealth countries who are not British citizens had the right to vote and that vote is close I am afraid we will have more trouble than we bargained for. It is not a risk worth taking. If we stick with a voting age of 18 and the current electoral register I think that is a workable solution. That is why my support for removing the Commonwealth citizens who are not British nationals is only tentative at this stage.
Lord Kerr of Kinlochard
I can remember the days when the Conservative Party was a very strong believer in the Commonwealth and I rather wish that the noble Lord, Lord Howell of Guildford, was here to join us and give us his views. I am in favour of maintaining Commonwealth ties. My father-in-law, a New Zealand Rhodes scholar, came here as a young man, spent 70 years here, wore the King’s uniform in the war, paid his taxes and never failed to vote. He voted in the 1975 referendum. I would think it a pity if people of that kind were denied a vote in this referendum.
I believe that the noble Lord, Lord Green of Deddington, whom I have known for 50 years and regard as a close friend, is completely wrong on this issue. It is uncomfortable to be caught between the noble Lords, Lord Hannay of Chiswick and Lord Green of Deddington, but we are a rough lot in the Foreign Office and I have learned to put up with it. In my view, there is a very serious immigration issue in this country but the issue is how best to integrate immigrant communities, and that is not best pursued by curtailing their rights.
The strongest argument against the amendment is the Irish one. We all know the long, sad history and the importance—and futility—of the settlement. I think that it would be most unwise to think of reopening that issue now, and I hope that the noble Lord, Lord Green, will withdraw his amendment.
Arbitration and Mediation Services (Equality) Bill [HL]
Lord Blencathra Excerpts(10 years, 9 months ago)
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Lord Blencathra (Con)
My Lords, I congratulate the noble Baroness on once again raising this issue. She has campaigned ceaselessly for the rights of women who may be disadvantaged by the application of sharia law to their divorces.
When the noble Baroness, whom I now regard as a friend, asked me to participate in this debate, there were only five of us on the speakers list and I had drafted a fairly long speech. Now that we have a list of distinguished and learned Peers taking part—I shall be followed by a very learned Peer—I have decided to follow the advice of my favourite great actor, Mr Clint Eastwood, when he said as Dirty Harry:
“A man’s got to know his limitations”.
Well, I know some of mine, so I can now be brief.
When the noble Baroness raised this issue in 2012, I think that the view of the Government was that there was no real problem since women could have access to the normal civil courts as well. But the evidence that we have heard today in the examples cited by the noble Baroness shows a huge chasm between what is the technical, legal position and what seems to be happening on the ground in reality. I have also read of numerous other examples provided by the noble Baroness which all show discrimination against women who have undergone a sharia law court or council of arbitration.
It would seem to me that the fundamental principle in divorce, after consent or non-consent after a defined period, is fairness. Both parties should be treated fairly. That does not necessarily mean “equally” in terms of division of goods and finances at the end of a divorce, but “fairness” as determined by an impartial court or judge under British law.
It seems that the Home Office has now recognised that there is a problem. Paragraphs 17 and 18 of the Counter-Extremism Strategy, published this week, state:
“Many people in this country of different faiths follow religious codes and practices, and benefit from the guidance they offer. Religious communities also operate arbitration councils and boards to resolve disputes. The overriding principle is that these rules, practices and bodies must operate within the rule of law in the UK. However, there is evidence some Shari’a councils may not follow this principle and that Shari’a is being misused and applied in a way which is incompatible with the law … There is only one rule of law in our country, which provides rights and security for every citizen. We will never countenance allowing an alternative, informal system of law, informed by religious principles, to operate in competition with it”.
That last sentence is pretty powerful stuff and my question to my noble friend the Minister is: will the Government legislate if their inquiry identifies a problem? Paragraph 48 of the strategy states:
“We will therefore commission an independent review to understand the extent to which Shari’a is being misused or applied in a way which is incompatible with the law. This is expected to provide an initial report to the Home Secretary in 2016”.
That sounds a wee bit vague. Why just an “initial” report? It is not too complicated surely to goodness; let us have a full report. And when will we have it in 2016? I would like the Minister’s assurance that if a real problem is identified in 2016, then we will have legislation in the gracious Speech of 2017.
Finally I say this, and I choose my words carefully. UK divorce law now treats both parties very fairly, but was that the case 30 years ago or 50 years ago? I think not—the noble Baroness, Lady Donaghy, touched on that same point. The law then was biased in favour of men, despite the fact that Christianity had moved on from Old Testament teachings. However, we know that Islam, perhaps not as written in the Koran but as practised by some in this country who are not learned Koranic scholars, is many years behind the modern view of turning the other cheek and loving one’s neighbour as oneself. Therefore, I cannot believe that sharia divorce law treats women fairly. Surely it is still operating in the United Kingdom timeframe of the 19th century when, under English and Scots law, women were treated as chattel with no rights. Again, if that view is wrong, then a proper inquiry can reveal the true situation.
I commend my noble friend on her Bill. It will not become law this Session but I hope that all the evidence she has produced and the comments in this debate will be taken on board by the Government so that we have government legislation in the next-but-one Session. I congratulate her, once again, on her fortitude and perseverance.
Crime: Home Protection
Lord Blencathra Excerpts(14 years, 9 months ago)
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Lord Blencathra
To call attention to the protection of home and person from intrusion or assault; and to move for papers.
Lord Blencathra
My Lords, in introducing this debate I am conscious that there are many deeply held views on these subjects and a great deal of misinformation in the media but nevertheless I believe that the balance of our laws is wrong because the law is, in my opinion, built on a nonsense. It is built on the concept that a person awoken from sleep at 3 o’clock in the morning and fearing for his or her life will be able to exercise a judgment on using reasonable force in a moment of sheer panic, when lawyers in a cosy courtroom many months later have difficulty in ascertaining, with all the time in the world, what is “reasonable”. To expect a householder at that moment to be awake and lucid enough and in complete command of his or her faculties, in my opinion, is wrong and unjust.
The CPS guidelines state:
“Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime. You are not expected to make fine judgments over the level of force you use in the heat of the moment”.
This year the CPS in Manchester, in the north-west, decided not to prosecute three householders who killed burglars while struggling with them and fighting to protect their homes and family. That was the right decision, but it was taken a month after the householders had been arrested. People who thought that they were going to be murdered in their own homes and fought back should not then be put in fear of being prosecuted, and left hanging for such a long time.
We should not have to decide whether the force was reasonable, but assume as a starting point, in my judgment, that any force used by a householder against an intruder is legal and appropriate. The message must go out to the police and public that householders have an absolute right to protect themselves, their family and home from intruders and that intruders leave all their rights behind the moment they climb through the window.
If the concept of “reasonable” cannot be removed, we must have a completely different understanding of what “reasonable” is at three o'clock in the morning. Envisage the situation where a person, believing that he or she is safe and secure at home, wakes up to find an intruder in the room. It must be one of the most terrifying things imaginable. I suggest that their reactions in all cases will be instinctive. It will be Pavlovian. It will not be reasoned. It may be to lie quivering in terror, to scream the place down or to retaliate and attack. I suggest that one of those reactions will come automatically; not as a process of reasoned thought. The innocent householder who instinctively lashes out at the intruder will be judged on the amount of force he used and whether it was reasonable in the circumstances. That puts an unfair burden on the innocent householder.
A few weeks ago, 140 service men and women received awards, among them 16 Military Crosses. When you read the citations you see that we still produce young men and women of mind-boggling selflessness and courage, but in all cases, what they did was illogical, irrational, and clearly not what a reasonable person would do if they thought about it. They did not think about it, they just reacted instantly, spontaneously, to save the lives of their comrades. That sheer selfless courage has been rightly recognised. Nor were they doing what they were trained to do. The infantry manual does not state that when you come under heavy machine-gun fire, you single-handedly charge the enemy, firing your weapon, lobbing every hand grenade you can get your hand on and take out the enemy position while receiving wounds in your legs and gut, but that is what those lads who won the Military Cross a few weeks ago did—instinctively, when surprised and taken by shock by the enemy.
I therefore suggest that a householder similarly suddenly confronted by a potentially life-threatening situation should be permitted to use all the force he is capable of to deal with that situation and should not be at risk of prosecution afterwards. I would also like assurances from my noble friend that a householder will have a complete defence even if he could have locked himself in a safe part of the building. The fact that one could theoretically retreat to a safe room must not be used as an excuse by the CPS to prosecute the householder who decides to stand and fight. I appeal to my noble friend to demand of the CPS that it comes to decisions in these matters much more speedily. Where there is a clear-cut case of genuine defence in one's home, the householder must be cleared with all possible speed. It is unjust to leave them waiting.
The most fraught area is when to stop defending oneself and one's property, especially if one chases the intruders from the home. I say “property” because the defence of oneself and one's home should extend to the defence of one's property in one's home. On when to stop defending oneself, the CPS guidelines state:
“The situation is different as you are no longer acting in self-defence and so the same degree of force may not be reasonable”.
The trouble is that the CPS often does not follow its own guidelines. The scandalous treatment last year of Omari Roberts is a case in point. He was a young apprentice builder with a perfectly clean record who came to his mother's house for lunch and found it being ransacked by two teenage thugs. In the struggle which followed, one burglar was stabbed and died. Omari was charged with murder based on a pack of lies told by the other burglar, who survived, who claimed that Omari chased him down the street. However, on the day that the case came to trial, the CPS dropped the charges as its key witness had by now forgotten his original pack of lies and had invented a completely new set. The CPS dropped the case not because it realised that it was acting entirely contrary to its own guidelines, not because it realised that Omari acted lawfully, but because it thought that it just might not win and that a jury would be 12 times more sensible than it was.
The surviving burglar’s original statement said that Omari chased him down the street, and this is the bit that the CPS used to bring a charge of murder against Omari. The CPS said that the time spent chasing the boy could have been used to summon the police. But hang on. The boy he allegedly chased and attacked lived. The boy Omari killed never left the house. So how can the chasing of the second boy result in a murder charge?
The biggest problem with this case is that the CPS’s entire argument revolved round a teenage burglar’s testimony, a teenage burglar with an ASBO and a number of previous convictions. Why is a burglar’s testimony given more consideration by the CPS than the victim’s statement? So although the guidelines are okay as they stand, it is sometimes, and often, the wrong-headed, misguided prosecution by the CPS of people like Omari which does tremendous damage not just to this innocent victim, but it sends a signal that the law is on the side of the thug and the burglar. That is where the damage rests.
This idea that there is a fine cut-off point when there is a threat and force is permissible, and then the second the threat is over force is not permissible, is also wrong. For some householders who instinctively fight back that adrenaline rush may last 30 seconds, for some it may last two minutes, for others it may last 20 minutes. It will be different for everybody and reason just does not come into it. If a householder continues his retaliation on the intruder even after the threat is theoretically over, he should not be prosecuted provided it was all part of that same psyched-up adrenaline rush that gave him the courage to fight back in the first place. I suggest that that is entirely different from a scenario where the householder has calmed down and half an hour later or the next day he decides to get revenge and go and beat up the burglar. That is not acceptable.
Let me quote one very sensitive example. Six years ago a highly trained, armed police officer was told that a person was wired up with a bomb and that innocent civilians were at risk and he could use lethal force. Leaving aside the incompetence of the command and control procedures of that operation, I have every sympathy for the officer who had to execute that order. Time was critical. He had to act fast. If the bomb was detonated, dozens would die. That officer psyched himself up to neutralise the problem and when he pounced on Mr de Menezes, he shot him in the head and again and again and again and again and again and again. Rightly he was not charged with any offence or disciplined because there was recognition that at times of severe stress a person taking action, even a highly trained officer, will go on taking that action long after the threat may be over because there is no rational or reasoned cut-off point when one is acting under extreme stress. I believe that the law must recognise that householders should not be expected to make rational judgments about when they should stop defending themselves by attacking the intruder when they are caught up in what is an entirely irrational situation in the first place.
I turn now to the protection of one’s home from theft. The time is long overdue when this should be made a criminal offence enforced by vigorous police action. Why is this most serious of thefts still a civil matter? If I steal the smallest item from a shop, it is a crime. I might not be prosecuted and I may get a slap on the wrist but it is a crime. If I think the restaurant meal was appalling, why should my dispute with the chef not just be a civil matter? It is not; it is a crime if I make off without paying for it. But if I come home from holiday and find that my house has been stolen from me, the criminal law does not care. The police do not want to know and I will have to spend months in the civil court system trying to get my property back. The people illegally occupying my house, of course, will get legal aid because they have no assets or property except my house. I will not get legal aid since I own a home which I cannot occupy and it will be a wrecked mess when I do get it back. The most valuable physical possession one has, apart from one’s health, is one’s home and it must be a criminal offence for anyone to misappropriate it.
It should apply to council housing and business property, too. If a council is failing to rent property quickly enough, the solution is for the Government to penalise the council. Occupation by squatters inevitably delays the day when that home is available for someone to legitimately rent. Of course, the police must not go around looking for people to evict. They should act only on a complaint from a property owner or tenant. If a person goes to the police and says that their property has been taken over, and produces prima facie evidence of their ownership—their name on the electoral roll or on a council tax demand—the police must be under an obligation to take recovery action immediately. That means evicting and arresting the squatters that day, with no right of appeal or judicial review at that time to delay the process.
If the Government go down this route—I hope that they do—and make this a criminal offence, I hope that the message will be clearly understood by chief constables that the main remedy Parliament wants is the immediate return of property to the lawful owner. In order to safeguard against suggestions that an unscrupulous landlord would lie to the police to get them to evict a tenant he did not like, we could build in a safeguard procedure: for example, that everyone calling for police assistance should sign a declaration stating that they are the legal owner or occupier. The penalty for a wrongful claim could be a £10,000 fine and two years’ imprisonment; or, for a landlord trying to get rid of a tenant, a £50,000 fine and five years’ imprisonment. That would stop any abuse of the system and reassure the civil liberties lobby.
The law should apply also to all commercial property, where legitimate owners at the moment are losing millions to illegal squatting. However, if noble Lords think that this is a bridge too far today, let us change the law as soon as possible on domestic premises being squatted and review the situation after a year. If we find that there is no abuse of the system, I suggest that the Government should push on with extending the criminal law to commercial property. The principle is the same: illegal occupiers of commercial property are no more moral than those who steal domestic property.
In both these situations, I have described how we need to change the law not just to correct injustices but to send a clear signal that it is instantly on the side of the law-abiding, the innocent, the decent, the righteous and those who fight back. I mean instantly—not months later when the CPS drops the charges; not years later when the Court of Appeal reduces the sentence; and not months later when a civil court might give you your property back.
In this, as in many things, perception is everything. There are lawyers who will say, understandably, that the law of self-defence is reasonable when applied by an intelligent court; but that is not the perception in the minds of innocent householders. That perception can be radically changed by small changes in the law, and I look forward to my noble friend telling me that he will bring in some of those changes instantly, and others in due course.
Lord Blencathra
My Lords, I am very grateful to noble Lords who participated in this short debate and I am particularly grateful to the noble Lord, Lord Thomas of Gresford, for his masterful exposition of English law over the past 250 years and to the noble Lord, Lord Bach. There is only one question I have for him: did he win his defence case?
Lord Blencathra
I feel in a similar position today: I feel I have half won on something. I am grateful to my noble friend the Minister for his statement of what the Government intend to do, I look forward with interest to the proposals on squatting and I urge on him my halfway-house solution: let us tackle the problem of domestic premises being taken over first. If the Government’s changes to the law there work, then one can look at commercial premises afterwards.
On self-defence, yes, I was trying to push my noble friend further than I know the House wants to go, or the Government want to go. I have no real objection to the concept of reasonable force, if the CPS guidelines are followed. Like the noble Lord, Lord Thomas, and other noble Lords, I am entirely supportive of the jury system; we must keep that. I am merely suggesting that there are some cases I have read about where the CPS should not have taken someone to the jury stage, but should have exercised the judgment to drop the case—Omari is a case in point. I also note the point that the noble Lord, Lord Bach, made that, in a trawl, there were only about 11 cases, maybe slightly more, which the CPS did advance.
I conclude by saying that I hope my noble friend will urge the CPS to make a rapid decision in such circumstances. Those of us who are addicted to “CSI: Miami” are used to Horatio confronting a highly complex, horrific crime scene, with 20 different suspects, reaching clarity within 24 hours and deciding who the bad guy is and who is innocent. I rather want the CPS to do the same in all these cases. I thank all noble Lords who have participated in the debate and look forward to hearing the Government’s proposals in due course. I beg leave to withdraw the Motion.