§ 4.5 p.m.
§ Report of Amendments received (according to Order).
§ Clause 3 [Use of force in making arrest, etc.]:
§
THE LORD CHANCELLOR (LORD GARDINER) moved to leave out "reasonable force" and insert "such force as is reasonable in the circumstances". The noble and learned Lord said: My Lords, I beg to move the first Amendment stand-
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ing in my name on the Order Paper. This Amendment arises as a result of a suggestion made by the noble Viscount, Lord Colville of Culross, on the Committee stage of the Bill. The noble Viscount, Lord Brentford, had moved to leave out "reasonable force" and insert "such force as is reasonably necessary". After a discussion, the noble Viscount, Lord Colville of Culross, said:
I understand the problem that arises by having a dual criteria—first of all, the reasonableness and, secondly, the necessity. I also understand the problem that has been raised by my noble friend Lord Brentford, that this clause as it now stands can be read in such a way that the reasonableness of the force is not related to the circumstances of the case but is merely an objective judgment of the amount of force in any circumstances."—[OFFICIAL REPORT, 24/11/66, col. 425.]
He then suggested:
A person may use such force as is in the circumstances reasonable in the prevention of crime.
After further discussion, my noble friend Lord Stonham said:
I have written that down, and I was just reading it through again:
'A person may use such force as is in the circumstances reasonable …'.". (col. 426.)
He then said that the Government would consider this question before the Report stage. My Lords, they have done so. As my noble friend has said, the Government doubt whether the criticisms are valid, and think the clause as it stands means that a person may use such force as is in the circumstances reasonable. Nevertheless, they think it would be right to make this clear, and this the Amendment does. I beg to move.
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Amendment moved—
Page 2, line 25, leave out ("reasonable force") and insert ("such force as is reasonable in the circumstances").—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSSMy Lords, may I first say, in thanking the noble and learned Lord the Lord Chancellor for explaining this Amendment, how sorry I am that the noble Lord, Lord Stonham, is still not able to be here to do so himself; but in the sad circumstances we very naturally accept the noble and learned Lord as a very adequate substitute. I am glad that the noble and learned Lord gave credit to my noble friend Lord Brentford for the origination of this Amendment, because it was he who made this point first, at 1069 Second Reading. Later, at Committee stage, he put down an Amendment upon it which, after discussion involving a number of noble Lords, finally produced the formula now in the Amendment. From what I heard the noble and learned Lord say, the clause will now set out exactly what the Government intend it to mean. I am very glad that this is so and that all doubt is now set aside, and certainly, for my part, I should be very glad to see this Amendment made to the Bill.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move this Amendment, which arises from a point made by the noble Lord, Lord Cones ford, in Committee (in col. 428), when he moved an Amendment to add the words "or in preventing their escape" at the end of Clause 3. He withdrew this Amendment on an assurance by my noble friend Lord Stonham that the Government would look again at the wording of the clause to ensure that it is wide enough to cover all the circumstances in which the use of reasonable force might be justified. The noble Lord, Lord Cones ford, gave certain other examples, and the Government are satisfied that in this Amendment the noble Lord's point has been met. I hope that he also will be of that opinion. I beg to move.
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Amendment moved—
Page 2, line 27, at end insert ("or of persons unlawfully at large.").—(The Lord Chancellor.)
§ LORD CONESFORDMy Lords, I should like to thank the noble and learned Lord for this Amendment, which entirely meets my point.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment meets a point raised by the noble Viscount, Lord Colville of Culross, in Committee (col. 430). It makes clear that Clause 3 supersedes the Common Law relating to the use of force in preventing crime or effecting an arrest. It is the Government's view that Clause 3 has that effect without the Amendment, but the Amendment removes any possible doubt. I beg to move.
§ Amendment moved—
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Page 2, line 27, at end insert—
(" (2) Subsection (1) above shall replace the rules of the common law on the question when
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force used for a purpose mentioned in the subsection is justified by that purpose.")—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSSMy Lords, again I thank the noble and learned Lord the Lord Chancellor for meeting this point and putting the matter beyond any doubt.
§ On Question, Amendment agreed to.
§ Clause 13 [Abolition of certain offences, and consequential repeals]:
§ THE LORD CHANCELLOR moved, in subsection (1)(a), after "of" to insert "maintenance (including champerty, but not embracery),". The noble and learned Lord said: My Lords, this Amendment and all the subsequent ones, arise out of a Report of the Law Commission which, in short, recommends the abolition of maintenance and champerty as crimes and as torts, subject to the effect which champerty may have in the law of contract. Your Lordships may remember that the Report was published two days before the Committee stage of this Bill, and at the Committee stage (col. 455) the noble Viscount, Lord Colville of Culross, indicated that the Opposition would be "quite content" if the Government found themselves able to implement the Law Commission's proposals in the present Bill. The Government have reached the conclusion that adoption of the proposals would bring about a useful tidying up of the law, and that this can appropriately and speedily be accomplished in the present Bill.
§ It is in the experience of those concerned in practice with law reform that if one does not take advantage of one's opportunities, a good deal of time may be lost. The Bill already provides for the repeal of several ancient enactments which relate to maintenance and champerty. Indeed, the noble Viscount at one time was under the impression that the repeals were included in anticipation of the provision to abolish the two offences of maintenance and champerty. That, however, was a misunderstanding. The repeals were included because the enactments were unnecessary in that they duplicated the Common Law offences. Therefore, what this Amendment does is to abolish maintenance and champerty, but not embracery, as criminal offences. I beg to move.
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Amendment moved—
Page 9, line 6, after ("of") insert ("maintenance (including champerty, but not embracery),").—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSSMy Lords, the noble and learned Lord the Lord Chancellor has referred to the Law Commission's document which, as I think we pointed out some time ago, suffers from the defect of not having a number. I am sure that this will be put right on subsequent occasions so that one can more easily refer to it. I 'have no doubt whatever that noble Lords on this side of the House will agree to the abolition of these now, I think, obsolete crimes and that this should be done in this Bill. When I made some complaint about the repeals that were proposed in one of the Schedules relating to these matters, the reason I did so was that I thought it would be easier and tidier to deal with the whole matter in one case, rather than bit by bit, anticipating that perhaps at a later stage we should have another Bill which abolished the Common Law offences. Now, of course, there is no reason for such criticism, and, as the noble and learned Lord has said, there are some alterations in the form of the Schedule to change the repeals of these Statutes from the unnecessary section to those which are expressly related to Part II of the Bill. But these are tidying-up matters, and so far as the principle is concerned, I welcome this Amendment.
§ On Question, Amendment agreed to.