Criminal Evidence (Northern Ireland)

– in the House of Commons at 4:12 pm on 8 November 1988.

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Photo of Mr Ian Gow Mr Ian Gow , Eastbourne 4:12, 8 November 1988

On a point of order, Mr. Speaker. Before the debate begins, can I seek your guidance on a matter of deep concern to many hon. Members on both sides of the House? You, Mr. Speaker, will have studied the draft order before us, and you will agree that it is a document of very great importance and of the most far-reaching significance for the administration of justice in the Province. Yet the Government have chosen to introduce that important piece of legislation not by means of a Bill, but by means of an Order in Council, which is unamendable.

It is enormously difficult for hon. Members who take an interest in the administration of justice in the Province to debate a proposed change of legislation without the possibility of the proposed legislation being considered in Committee and on Report. We are grateful to my right hon. Friend for having allowed a long time for us to debate the order, but that is no substitute for being able to move amendments and for those amendments being considered by the Minister in charge of the Bill. I ask you, Mr. Speaker, whether there is any reason why the Government could not have proceeded with the legislation by the conventional Bill procedure, although it is correct that the order applies only to Northern Ireland.

Photo of Mr Bernard Weatherill Mr Bernard Weatherill , Croydon North East

I do not know that it is for me to say whether other methods might have been used. My concern in studying the Order Paper is to ensure that what is on it is in order. This procedure is in order. I often hear such complaints during debates on Northern Ireland orders, and I think that the hon. Gentleman should make his point during the debate.

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland 4:14, 8 November 1988

I beg to move,

That the draft Criminal Evidence (Northern Ireland) Order 1988, which was laid before this House on 20 October 1988, be approved. I entirely understand why my hon. Friend the Member for Eastbourne (Mr. Gow) raised that point of order. The House knows that it is in order to introduce an order in this form, because the provisions apply to the general criminal law in Northern Ireland and that is a reserved matter as defined in schedule 3 to the Northern Ireland Constitution Act 1973. In the absence of any proposals for devolution, provision can be made by Order in Council subject to affirmative resolution of both Houses of Parliament. I am conscious of the reservations of many right hon. and hon. Members about that procedure, and I certainly would be willing to sit down with them and discuss the ways in which we proceed with legislation, and particularly to discuss with the elected representatives of Northern Ireland, and other parties in the House, whether there are ways in which procedure might be improved.

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

No. I have sought to respond honourably to the point made by my hon. Friend the Member for Eastbourne (Mr. Gow), and I should get on.

In view of some of the reporting of this issue I must make it clear straight away that the purpose of the draft order is not in any way to remove the so-called right of silence of suspects questioned by the police or of defendants in court. Nothing in the draft order will oblige an accused to make a statement, nor is there any suggestion that silence should be an offence. As I shall explain, the purpose of this draft order is to allow the courts in certain carefully defined circumstances to draw such inferences as would be proper from an accused's silence.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Before my right hon. Friend goes into detail, will he please tell the House whether any disadvantage would be suffered if he were to adopt the Bill procedure for this measure?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

This procedure has been followed in the past for matters affecting the general criminal law. I sought to respond as positively as I could to the reservations expressed by my hon. Friend the Member for Eastbourne. I have nothing to add to my comments.

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

If the right hon. Gentleman will allow me, I sought to respond to a point of order that was not for the Chair, and I hoped that the House would find my comments helpful. Although my hon. Friend the Member for Eastbourne was generous enough to say that we have some time, we do not have limitless time and I should like to make some progress.

For some time the Government have been reviewing the law on criminal evidence in Northern Ireland in the light of the grave challenge from continuing terrorist violence and from other serious crime, particularly racketeering. They have had before them a formidable body of persuasive evidence for change, including the acknowledged difficulties faced by the police and the prosecuting authorities in bringing to justice hardened, professional criminals—often assisted by able legal advisers—who are thoroughly trained in resisting police questioning, and in the case of terrorists, who even publish in their news-sheets detailed instructions on techniques for resisting questioning under the heading, "Whatever you say, say nothing". That is a measure of the importance attached to silence by those who are engaged in a sustained and systematic assault on the rule of law and the institutions of our democracy. These practices are now widely recognised and imitated throughout the criminal elements in Northern Ireland.

At present the law in Northern Ireland—as in England and Wales—precludes a trial judge from suggesting to the jury that an adverse inference may be drawn from the fact that an accused chose to remain silent when questioned by the police, or in a Diplock court, where there is no jury, the effect is that the judge must direct himself that he may not draw inferences from the accused's silence. That is so, even if the circumstances were such that an innocent person might reasonably have been expected to proclaim his innocence and draw attention to facts which served to establish it. Whether that should be so has long been the subject of a debate which has sharply divided the legal profession.

The Government were impressed by the arguments and recommendations of the Criminal Law Revision Committee in its 11th report in 1972 that in certain carefully defined circumstances it should be permissible for a court to draw adverse inferences from an accused's silence during questioning. In many—though not all— cases it is surely reasonable to expect that an innocent man will wish to proclaim his innocence and to co-operate with the police by answering questions, and most laymen would regard a complete refusal to answer questions as suggestive of guilt.

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

I emphasise that in no sense would it even now, if the draft order is approved, become mandatory to draw any inference, but only if the court or a jury, properly directed by the trial judge, deemed it proper to do so.

Photo of Sir John Morris Sir John Morris Shadow Attorney General

So that the House will understand what the procedure will be, will the right hon. Gentleman tell me the words of the caution that the police constable will now give?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

I cannot give that advice. The draft has been prepared and is being considered. Clearly, it will be necessary for that to be approved and agreed. As the right hon. and learned Gentleman is aware, it will be in a form that will satisfy the courts.

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

It may be more helpful if I take one intervention at a time.

In the Government's view there is much force in the CLRC's argument that the present law hands an unnecessary advantage to the hardened criminal who uses it to refuse to answer any questions and thus to bring police investigations to a halt. I am aware that these issues have been much discussed, that the CLRC recommendations aroused some strong opposition and that recently the Royal Commission on criminal procedure, by a majority, rejected introducing measures to allow courts to draw inferences from silence.

However, the law on criminal evidence should not be artificial and surely it is desirable that all relevant evidence should be admitted—as the CLRC recognised. The object of a criminal trial is to establish the guilt or innocence of the accused. While the innocent should always be acquitted, it is also important that the guilty be convicted.

The Government believe, therefore, that the arguments against change are overstated and that the CLRC's arguments are stronger, full of common sense and significantly reinforced by the deliberate and extreme exploitation of the present position. If right hon. and hon. Members refresh their memories on the Royal Commission's analysis, they will see that it was based on a study showing that few people made use of the right to silence. About 4 per cent. refused to answer any questions. Anybody with any knowledge of Northern Ireland will know that in Northern Ireland the figure is very different.

In that context, the Government took note of the law in the Republic of Ireland, which was changed by the Irish Parliament in 1984 by the enactment of sections 18 and 19 of its Criminal Justice Act 1984, permitting the courts in the Republic to draw adverse inferences in certain specified circumstances from the fact that an accused had remained silent when questioned by the police.

Photo of Mr Seamus Mallon Mr Seamus Mallon , Newry and Armagh

In the interests of accuracy, should not the Secretary of State point out the four areas in which the order differs from that which pertains in the Republic of Ireland?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

I will spell out the details of the order and that will become apparent.

We have now reviewed a wide range of evidence and the Government propose, through the draft order, that the general criminal law in Northern Ireland should be amended to permit the courts in four circumstances to draw whatever inferences would be proper from the fact that an accused remained silent. Two are dealt with by provisions that have the same effect as two provisions recommended by the CLRC. The first is the "ambush", where, having remained silent during police questioning, the accused offers an explanation of his conduct for the first time at his trial when he might reasonably have been expected to offer it when being questioned.

The second provides that, if the prosecution can establish that there is a case to answer, the accused must be warned that he will be called to give evidence and that if he should refuse to do so, the court may draw such inferences as would appear proper.

The other two provisions have the same effect as sections 18 and 19 of the Irish Criminal Justice Act 1984. One allows the court to draw such inferences as would appear proper from an accused's failure or refusal to explain to the police certain specified facts such as substances or marks on his clothing. The other makes similar provision where an accused fails or refuses to account to the police for his presence at a particular place.

Before I explain the content of the articles in the draft order, it is worth remembering that the changes will operate against the background of the established protection for a suspect's rights in police custody in Northern Ireland and that we have in hand proposals further to enhance those rights. For those detained under the terrorism provisions, part 11 of the Northern Ireland (Emergency Provisions) Act 1987 provides comprehensive protection for the rights of suspects while in police custody. Under those provisions a person has a right to have someone informed that he is being detained, where he is being held, and a statutory right to consult a solicitor. In both cases the police are obliged to inform the person of his rights. Similar provisions will be proposed for persons suspected of non-terrorist offences when the Government shortly lay before Parliament a draft police and criminal evidence order, for which a proposal has been out for consultation during recent months.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

Can the Secretary of State inform the House of the number of occasions when an application for a solicitor has been refused?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

I need to check the details. I shall look into that and I am sure that my hon. and learned Friend the Solicitor-General will be anxious to reply.

Article 1 brings articles 2 and 4 into operation on the seventh day after the order is made. The remaining provisions of the order will come into operation on the expiration of one month from the day on which the order is made. The delay of one month is necessary to ensure that police instructions can be implemented on the need to warn suspects of the implications of their failure to explain material facts when questioned.

Photo of Mr Patrick Duffy Mr Patrick Duffy , Sheffield, Attercliffe

Before those articles become operative, will the right hon. Gentleman assure the House that the automatic reporting of police interrogations will be universally available?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

By "automa tic reporting" does the hon. Gentleman mean tape recording?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

The police and criminal evidence order, which is out for consultation, covers that and it is intended to introduce it, but not for terrorism cases. Hon. Members may smile, but anyone who has studied the issue knows that there is a real problem. The greatest evil is the evil of terrorism and the intimidation and threats that go with it, and people must be aware of the difficulties involved in interrogation and intelligence if we record such cases. I am certainly keen to see that, and it is intended to introduce it. It is in the order, which the hon. Gentleman may have studied.

Article 2 deals with the interpretation of expressions used in the order. I draw the special attention of the House to articles 2(4) and (5) because they make clear on the face of the draft order that no one can be convicted under any of these provisions solely on inferences drawn from his silence.

Photo of Mr Peter Archer Mr Peter Archer , Warley West

The Secretary of State has drawn attention to the provision in article 2(4). That article says that in deciding whether there is a case to answer, a court shall not draw the inference set out in article 3. Article 3(2) says:

Where this paragraph applies—(a) the court, in determining whether to commit the accused … or whether there is a case to answer; may—(i) draw such inferences". On the face of it, are those two provisions not inconsistent?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

On the face of it, I do not think that they are, but the right hon. and learned Gentleman is a lawyer and I do not want to tangle with him. Fortunately, I have brought some supporting arms in the shape of my right hon. and learned Friend the Solicitor-General. Later, perhaps he will be kind enough to engage in an interesting legal exercise. As I say, on first reading I do not think that the articles are inconsistent, but I have great respect for the right hon. and learned Member for Warley, West (Mr. Archer), bearing in mind his previous activities, and I shall look carefully at the point that he raises.

Article 3, which has the same effect as draft clause 1 of the Criminal Law Review Committee's recommendations, substantially abolishes the rule of evidence that, if the accused relies in his defence on some fact that he failed to mention when questioned or charged, the court or jury may not draw inferences from the failure and may not treat this failure as corroboration of the evidence against him. Article 4 has the same effect as draft clause 5.

Photo of Mr Ian Gow Mr Ian Gow , Eastbourne

Before my right hon. Friend leaves article 3, may I ask him if he is asking the House to approve this order after a debate of a maximum of four and a half hours, without telling the House the words that will be contained in the caution given to a suspect?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

As I said before, a draft caution has been produced and is being considered by the Lord Chief Justice. Of course it will be necessary for the caution to comply with the terms of the order. If it does not comply with those terms—I bow to such advice as I might receive —my understanding is that it would not be a valid caution. It will be necessary for the court to be satisfied that the caution properly reflects the terms, conditions and circumstances faced by an accused under this order. That is my understanding of the matter.

As I said, article 4 has the same effect as draft clause 5. If, at the trial of the accused, the court considers that there is a case for him to answer, then, subject to certain exceptions, the court must at the appropriate time call on him to give evidence. If he refuses to do so or if he refuses without good cause to answer any question, the court or jury may draw such inferences from the refusal as appear proper, and may also treat such a refusal as corroboration of any evidence against the accused.

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

Perhaps the hon. Gentleman will forgive me if I do not give way. Interventions tend to break the thread of the argument.

Article 5 which has the same effect as section 18 of then Irish Criminal Justice Act 1984, provides that a court or jury may draw such inferences as appear proper where an accused fails to account to a constable for some specified fact such as a mark on his person or clothing or the condition of his clothing or footwear. There is a safeguard that such inferences can be drawn only if the accused was told in ordinary language by the arresting constable what the effect of failure or refusal might be.

Finally, article 6 has the same effect as section 19 of the Irish legislation. It makes similar provisions to the previous article about the inferences that may be drawn from a failure or refusal by an accused when arrested by a constable to account for his presence at a particular place at or about the time when the offence was committed.

The proposals in the order have been brought forward only after the most careful consideration by me, my Department and the Government of a subject that has been debated exhaustively over the last 16 years. In his statement on 20 October, my right hon. Friend the Home Secretary made clear that he also intends at the earliest opportunity to bring forward legislation on this matter for England and Wales, but it is right that we should act now in Northern Ireland to restore the balance of justice there.

Anyone who knows anything about the present situation in Northern Ireland and about the challenge that is faced by the police and the prosecuting authorities whose very lives are at risk as they discharge their responsibilities to protect the community, will know about the deep sense of concern and frustration felt by all decent people in Northern Ireland. They are concerned and frustrated because they know that the absolute refusal by many people to answer questions cannot be taken into account by a court.

I was asked whether I have any figures. The RUC informs me that of all those detained for questioning in connection with serious crimes, including terrorist offences in Northern Ireland, just under half refuse to answer any substantive question while in police custody. Many of those people will not answer any questions. It is quite clear that in too many cases justice is being thwarted, and this must be remedied as soon as possible.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

Is there any evidence to suggest—and this may well be the case—that those who refuse to answer questions are more likely to be aquitted than those who answer questions?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

There is considerable evidence to show that justice is being thwarted. I do not think that it is any secret that many people about whom there are grave doubts and the gravest suspicions are not brought to justice. It is a matter of balance. In discharging my responsibilities I have to take into account the fact that the whole system of justice in Northern Ireland is under attack. I have here a list of magistrates and judges who have been injured or murdered. The list takes no account of the previous intimidation of juries or of the intimidation and murder of witnesses. That list is the most visible evidence of the attack on the system of justice in Northern Ireland and the holder of my office can neither remain ignorant of that attack nor disinterested in it.

We also know that there is a calculated campaign to frustrate the course of justice, not least through the advertised campaigns of instruction about how to frustrate police questioning. Earlier I mentioned the slogan, "Whatever you say, say nothing". That has permeated right through terrorist crime into racketeering, gang-type activities and general criminal activities. Faced with that, and with the need to maintain the balance of justice and the protections of which this House, of all places, is jealous, I would dare to presume, in front of a number of distinguished lawyers facing me, as well as those behind me, that one needs and is entitled, and the House has a duty, to keep that law under review and to see that the balance is correctly maintained in the face of this calculated and determined attack. I am standing here now because I believe that this is a time when that balance has to be redressed, and when we have to consider whether there is a case for making modest changes.

As I said at the start of my speech, in no sense is this an attack on the right to silence in the sense of people being compelled to speak. Under the serious fraud legislation, it can be a contempt if people refuse to give evidence, but there is no such requirement in this order. In four limited areas, we are proposing to move from the situation in which there is an absolute prohibition on a judge or jury drawing any conclusion from silence. I think that many people would think that we were mad if, in certain circumstances, when the law is deliberately exploited by a number of clearly guilty men who are among others who may face the courts, we were to say that there should be no opportunity for the courts to draw any inference.

This is a limited measure and I could be criticised for not going further. As I emphasised earlier, it will not be mandatory for the courts or for a jury as properly instructed by a judge to draw any inference. They will have, if they think it proper and if, in the case of a jury, they are properly directed by a judge, the opportunity to take this into account. The House owes it to the people who seek to maintain a system of justice against all the provocation, the dangers and the difficulties, at least to allow this modest change in Northern Ireland.

Photo of Mr Barry Porter Mr Barry Porter , Wirral South

I have listened with great care to my right hon. Friend. Perhaps he might bear in mind that there are no greater opponents of terrorism than I and my hon. Friends the Members for Wolverhampton, South-West (Mr. Budgen) and for Eastbourne (Mr. Gow). All three of us are loyal supporters of the Union, but have a clear feeling of unease about the way in which, and the haste with which, the order has been brought into the House. In view of the perfectly sensible questions about, for example, the caution, is there not time for some reflection and further discussion about this matter before it is put to the vote?

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

I think it right to bring this order before the House tonight, and that is why I am standing here now. I sought earlier to cover some of the points that my hon. Friend made. This is not a new subject. My hon. Friend is familiar with Northern Ireland, and knows that this is a matter that anybody spending any time discussing the situation in Northern Ireland and visiting the Province will find raised as an issue on which there are strong feelings. Against that background, while I am under no illusions that this is some panacea for the problems of securing a better balance in convictions and in seeing that justice is done, I believe that these are sensible and necessary measures to take. They have struck the right balance between the proper interests of people facing charges in Northern Ireland—

Photo of Mr Tom King Mr Tom King The Secretary of State for Northern Ireland

Will my hon. Friend allow me to finish?

They strike the right balance. They are modest but important changes. They are not changes that innocent people need fear, but they at last restore something to, and will help maintain, the balance of a system of justice that is under threat, to the benefit of all the people in the Province.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North 4:45, 8 November 1988

These modest changes are only on a par with Dean Swift's modest proposals. It is not right to say that juries do not draw an inference from silence and by the accused not going into the witness box, whether the judge draws attention to it or not. Juries are not idiots and they draw inferences.

It is with a sense of sadness that I reply to the Secretary of State, because, despite all the warnings, despite all the evidence of the past 20 years, despite his own knowledge of the realities of the conflict in Northern Ireland, he has fallen into a pattern that we have witnessed all too often. A new Secretary of State approaches his office with hopes for the future and a commitment to reform. He becomes disappointed at the slow pace of progress and then resorts to simplistic and repressive solutions. The Secretary of State has failed to recognise that, to the extent that reform has failed, the main responsibility lies with the Government's half-hearted pursuit of that objective.

The Secretary of State appears to have abandoned the long-term strategy of the Anglo-Irish Agreement for a short term, short-sighted attempt to keep the lid on the conflict. Once again, the Province is suffering from the inability of its rulers to appreciate the complexities of its problems. This order epitomises the politics of despair, and despair is always dangerous, particularly in politics. It is, after all, the only sin that cannot be forgiven; that is why the Labour party opposes the measures, both for its simpleness and because it implements the politics of despair.

We oppose the order because it reveals the political bankruptcy of the Government and because it represents such a transformation of the legal system that no one who believes in the liberty of the citizen can support it. Hon. Members on both sides of the House will rightly point out that terrorism itself violates the rights of the individual. It does, but that is why the state must go out of its way to maintain civil liberties. The paramilitaries cannot be defeated through methods that are incompatible with the existence of democracy. Unless the state enjoys a moral status incomparably superior to that of its armed opponents, it cannot triumph. Otherwise, it relies on the argument that might is right, and that is the essence of the paramilitary case.

If there is no difference between the state and the paramilitaries in terms of means, one would have to choose whom to support on the basis of ends alone. It is self-evident that the legitimacy of the lawful authorities would be seriously undermined if that were the case. While the House is not neutral in the conflict, the unpalatable reality is that large sections of the population in Northern Ireland are neutral about the security forces and the paramilitaries of either community. These are the people who supported the institutions of Government, and their support must be won if the conflict is to end, but the order will reinforce those people in their distrust.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

The public perception is that the end that the Labour party supports is that of a united Ireland, and when the Government introduce means to frustrate terrorism, then the Opposition always seem to oppose them. The public is perfectly clear about what the Opposition are trying to do.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

To combat terrorism, we shall support any proper means under the rule of law which we believe would be effective. The problem is that the Government are continually introducing methods that are not effective, as I shall seek to demonstrate.

This is evident when one considers the logic behind this measure. The order stems from a state of mind in which the militarisation of the judicial process becomes a legitimate tactic. Such an approach neglects the damage inflicted on the credibility and effectiveness of that process. In that sense, the order is a victory for those it purports to undermine.

The order is fundamentally flawed because the Government assume that an extremely complex political problem can be resolved merely through changes in the legal system. They assume that the opposition to the present institutions in Northern Ireland and the alienation from democratic politics can be overcome merely by coercion. We do not accept that. The Government have issued the wrong prescription because they have falsely diagnosed the problem. They justify the order by the need to facilitate the work of the police and the courts when dealing with highly trained paramilitaries. The Labour party supports measures which, under the rule of law, effectively combat the paramilitary threat, but this order does not do so.

It is not the co-operation of the paramilitaries in an interrogation chamber which is significant, it is the fact that tens of thousands of ordinary citizens in Northern Ireland do not co-operate with the Royal Ulster Constabulary. That is the problem, and it cannot be changed by negative initiatives of this sort. It will change only when the institutions in Northern Ireland, including the Royal Ulster Constabulary, become more acceptable throughout the whole of Northern Ireland. Far from doing anything to inspire greater confidence in the police and the judiciary, the order will bring them into further disrepute. The Government, having abandoned the hope of winning consent, are resorting to coercion. That is a pattern all too obvious in the history of Britain's dealings with Ireland.

One of the major steps in the establishment of our civil liberties came in 1568 in the decision by the Court of Common Pleas to release a prisoner jailed for refusing to answer questions put to him by a trial judge. The threat to the security of the kingdom at that time was far more severe than anything we face today. Similarly, the 1640s —when the right to silence became fully established—was a period of great domestic and international upheaval, but it was precisely at those moments of stress and threat that the importance of civil liberty was recognised. The kingdom survived and grew in strength and authority because of the extension of rights and freedoms, not in spite of them.

Those historical lessons are now being thrown overboard by an arrogant Government who have lost faith in their ability to reconcile law with order.

Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South

I am grateful to my hon. Friend for giving way so courteously, when the Secretary of State repeatedly failed to give way to me. Does my hon. Friend agree that this issue does not just concern the right to silence? This is the first step on the road to compelling people to give evidence in court on oath. That is the subtle difference. When a court calls upon a person to give evidence under article 5 in this charter, it calls upon a person to give evidence on oath. That flies in the face of our basic system and of the principles regarding the burden of proof.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

I shall deal later with some of the points raised by my hon. Friend.

Earl Warren, the famous chief justice of the American supreme court, put the case nicely when he said: To declare that in the administration of the criminal law the end justifies the means … would bring terrible retribution. Against that pernicious doctrine, this court should resolutely set its face. It is against this pernicious order that the House should set its face.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

It is obvious from the Government's behaviour that they are embarrassed about the steps that they are proposing and that they are not convinced of either their propriety or efficacy. The order bears the obvious signs of being a rushed measure, both in terms of the dubious reasoning put forward by the Government and in the drafting of the order. The Government's case is severely flawed both in terms of logic and honesty. The Secretary of State justifies the order by reference to the difficulties involved in dealing with paramilitaries and racketeers, yet he proposes this extension throughout the whole of the criminal justice system and does not confine it merely to emergency legislation.

At the same time, having observed the Northern Ireland experience, the Home Secretary has announced his intention to introduce similar legislation for England and Wales.

Photo of Bill Cash Bill Cash , Stafford

Will the hon. Gentleman give way?

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

I will not give way to the hon. Gentleman. He was not here at the start of the debate; if he had been, I would have given way to him.

All the while, the Prime Minister appears to believe that this is merely a temporary restriction of civil liberties. The Government cannot have it both ways. Either the order is justified by reference to the specific difficulties of Northern Ireland—in which case it is unclear what relevance the order has to ordinary crime in England and Wales—or the Government have ulterior motives for taking away a fundamental civil right from everyone. The latter interpretation is the most plausible.

The Government have rested their case on selective and subjective grounds for what is a radical change in the criminal law. I attempted to secure answers about the evidence upon which the Government are taking action. My questions have all met with the same response: Records are not maintained in the form which would permit the hon. Gentleman's question to be answered. In effect, the Government have informed me that they do not know the answers or are not prepared to publish the evidence, so that we can look at what the police and the judiciary are saying. If the Government are not prepared to do that, we are not prepared to accept the order.

Similarly, the Government carefully resurrect the 16-year-old recommendations of the Criminal Law Revision Committee. They do not tell us how bitterly criticised that report was. Some of the more polite descriptions were "ill-fated", "notorious" or "fatally flawed", and the report was not implemented because it contained no evidence to justify the proposed changes.

Having resurrected that 16-year-old report, the Government appear to have buried the 1981 report of the Royal Commission on criminal procedure. The commission rejected the abolition of the right to silence. The commission has suddenly been censored out of existence, although the Police and Criminal Evidence Act 1984 was based on it. Why, then, this selective amnesia? The answer is simple: the Secretary of State and the Prime Minister have once again subordinated the facts and the reality to the Prime Minister's prejudices.

To justify the order, the Government are making use of the police force in a scandalous manner. For short-term gain, the Government are threatening the hard-won independence of the police and of the Royal Ulster Constabulary. The credibility of a police force depends on its being seen to remain outside partisan politics, a difficult enough task in Northern Ireland. The Government are dragging in a crude attempt to mobilise the police for their own political ends.

The Government's case depends purely on anecdotal evidence from the police and the judiciary. They refuse to publish the representations made by the police and the judiciary. No serious research exists which would support the Government's claims. There is no evidence that the right to silence assists defendants, but, by dragging the police and the judiciary into the political fray, the Government are trying to establish a case at the expense of public confidence in the police, in the Royal Ulster Constabulary and in the Northern Irish bench.

It is quite easy to see the emptiness of the Government's case. The Government argue that people whom the police believe to be guilty either cannot be charged or, once charged, are acquitted by the courts because of the right to silence. Of course the police believe this to be the case—it would be extraordinary if the police were to arrest people they believed to be innocent or to charge those whom they believed to be innocent—but it is precisely for that reason that the investigation of crime and the trial are separate and distinct procedures. The purpose of the trial is to determine the validity or otherwise of the police case. I do not think that any rational police officer would wish that to be otherwise.

The Government's selective presentation of the facts to support their case gives way to downright dishonesty when they seek to draw parallels with the criminal procedure of the Republic of Ireland. I would welcome the Government's new-found commitment to harmonisation of policies in the two parts of Ireland, if it were sincere and complete. When, for instance, will three-judge hearings be introduced in the Diplock courts? When will we see harmonisation in a broad range of policy areas regarding security, which is vital if we are to reduce the divisions within Northern Ireland and between the North and the South? We look forward to those measures, but the Government have not yet introduced them. However, with regard to calling in aid the legislation of the Republic, the unfortunate truth is that the measures in this order have little in common with the practice in the Republic.

The abolition of the right to silence at trial was not even considered by the Irish Government. It is true that they proposed to admit the drawing of inferences from silence in the pre-trial phase, but that was rejected by the Oireachtas, the Irish Parliament. The similarities that exist are more apparent than real because of the disquiet that is felt by the Irish judiciary, which has refused to draw such inferences at trials. In an effort to find a case for the Secretary of State and the Prime Minister, the Government's propaganda machine has presented a travesty of the truth. They are not content with introducing their proposals by the back door, for they are attempting to justify them in a dishonest manner. The Irish experience refutes the Secretary of State's case rather than supporting it.

Photo of Mr Harold McCusker Mr Harold McCusker , Upper Bann

My intervention might be of assistance to the Secretary of State. Can the hon. Gentleman tell us what the caution is in the Irish Republic on this issue?

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

No, I cannot. It appears that the hon. Gentleman is seeking to help the Secretary of State. I am pleased about that, for it is the first piece of assistance that the Secretary of State has had from the hon. Gentleman since the Anglo-Irish Agreement.

Presumably the purpose of this apparent dishonesty and the misleading of the House is for the "benefit" of the House and international community. Northern Ireland is an issue that has steadily become international, and the Government's efforts to campaign against the MacBride principles in the United States reflect this awareness. At the moment when the American people are exercising their democratic rights, the Government are adopting measures that inspire a great deal of hostility towards Britain in the United States and throughout the world.

Last week, the House voted to violate the first amendment of the American constitution, which is the freedom of the press. Tonight, as America votes for a president, we are undermining the fifth amendment, which is the right not to incriminate oneself. The case for the paramilitarists in Northern Ireland could not have been better put than by the introduction of the measures that are before us.

These issues arouse the fury of Irish-Americans and of all citizens within that country. A British citizen wrote to me from California in these terms: Many thoughtful Americans are deeply shocked that the British Government should contemplate the abolition of our own equivalent of the fifth amendment. Traditionally, Britain has enjoyed an enviable reputation in the world as a champion of civil liberties, but the present Government seem to care nothing for this. Mrs. Thatcher and her Ministers appear to be totally insensitive to irreparable damage that they are doing to our international reputation as a freedom-loving country. Thus the Government, by their own actions, have made life far more difficult for those American leaders who attempt to play a constructive and educational role over the question of Northern Ireland and have strengthened the hands of those in North America who are apologists for violence.

The Secretary of State has attempted to present the order as one that introduces relatively limited changes in the criminal law. He described it as a "modest proposal". That is not so. We are being asked to overturn one of the pillars of the British system of justice. The Secretary of State is being disingenuous when he says that the proposed changes are relatively minor. They are not. They represent a dramatic and drastic move away from our adversarial system to an inquisitorial system.

In some ways, the debate is hindered by the use of the term "the right to silence". The law states that the prosecution must prove the guilt of a defendant beyond reasonable doubt and without the assistance of the defendant. That principle is based on three assumptions. First, it is presumed that the accused is innocent until proved guilty. Secondly, it is recognised that proving a negative is often impossible. Thirdly, confessions are admissible only if given voluntarily. The order violates all these axioms of the criminal law.

The onus of proof is being placed upon the defendant. A suspect, often without legal advice, or without any clear knowledge of what he or she is suspected of having done, will be required to demonstrate innocence. There is a presumption that reasonable suspicion can be equated with guilt. Particularly worrying is the requirement to prove a negative. This affects both the general issue of innocence and the specific case of the so-called ambush defence. Suspects will be required to mention any fact that may be used in their future defence.

It is possible to be reasonably sure that a suspect imparted certain information, but one cannot be so certain that a suspect did not do so. It is one thing to tape-record an interview in a police station—in the majority of cases that we are considering in Northern Ireland, which will be scheduled cases or terrorist cases, that will not be the position—and another to keep records of what happens outside the police station. Who is to decide what constitutes a relevant fact, to decide which apparently minor detail may later take on a great deal of significance? This is a form of retroactive punishment, where the absence of foresight will be penalised in the trial procedure.

Photo of Mr Barry Porter Mr Barry Porter , Wirral South

I have no doubt that the hon. Gentleman realises that there has already been a breach of that principle in the requirement in United Kingdom law for notice of alibi to be given. If a defendant chooses to raise an alibi defence, notice must be given to the prosecution by the defence so that such a defence cannot be raised at the trial without the prosecution having the opportunity to study and check that defence. Perhaps the hon. Gentleman will address his mind to whether that which is proposed is merely a continuation of that breach or something fundamentally different.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

I think that it is fundamentally different, for the reason that I shall advance. I do not object to the requirement that notice of alibi must be given to the prosecution, but that is not what will happen under the order.

No confession can be regarded as voluntary once the order is in force. Voluntary confessions imply that one has the right not to talk. If we take that right away, every confession, as a matter of logic, becomes involuntary. It is quite obvious that the order involves a degree of coercion on the suspect or the accused. The order will provide more work for lawyers, the Court of Appeal, the House of Lords and, unfortunately for Britain's reputation, the European Court of Human Rights. It will needlessly complicate the law of evidence and embroil the courts in what is ultimately political conflict.

I return to the issue raised by the hon. Member for Wirral, South (Mr. Porter), who represents the posh end of Merseyside. I think that he is right when he talks about ambushes and giving notice of alibis, but that is not the purpose of the order as it has been drafted. That does not bear on the way on which involuntary confessions will come out, as it were. We are dealing with a form of coercion. If someone does not say something, that fact will be noted and reference will be made to it.

Those who wish to introduce an ambush alibi will not be prevented from taking that course. Those who choose not to remain silent—for example, hardened terrorists—will have their alibis prepared. They will have Sammy Wilson in a pub on the Shankill. Perhaps that was an unfortunate choice of words, for I was not referring to the lord mayor. As I was saying, they will have Sammy Taylor in a pub in the Shankill or Seamus O'Keane in the Falls, ready to swear that someone was somewhere else when the time came. The paramilitarist will not be affected in any way. In other words, the order will not affect them.

We cannot consider the order without reference to the existing criminal law in Northern Ireland and to the changes that are proposed in the draft Police and Criminal Evidence Act 1984 (Code of Practice) Order 1988. The police have already been granted extensive powers in the emergency legislation. These powers have been recognised as resulting from the conflict in Northern Ireland, powers which would not be on the statute book otherwise. We must therefore think carefully before adding to the many provisions which already exist within the emergency powers. Extension of police powers in the past has not ended the conflict, and it is unlikely that it will do so in future. It is unlikely that the balance that the Secretary of State is looking for in the courts will be restored, if it needs to be.

It is already an offence to withhold information about terrorist activities, under section 11 of the Prevention of Terrorism Act 1984. Much concern has been expressed about the relationship between the order and section 11, not least by the Law Society of Northern Ireland. It seems that it believes that the combination of the two would provide an incentive for a modified version of the discredited supergrass system.

There can be no short cuts in the fight against crime. Investigation and the careful accumulation of evidence must be the basis of policing in Northern Ireland. Such an extension of police powers will only make investigation more difficult, as it undermines the credibility of the criminal law and of the police.

The Government have attempted to justify the measure by arguing that the right to silence was introduced to defend the individual against the arbitrary use of power in a despotism. Now the Secretary of State has said that, given the safeguards in the Northern Ireland (Emergency Provisions) Act 1987, the Police and Criminal Evidence Act 1984, and easy access to legal advice, the proposals for non-paramiltary offences in the draft order are no longer necessary. Once again, he is being misleading.

In Northern Ireland, as in the rest of the United Kingdom, the police have no statutory duty to inform a suspect of his rights. More important, since the commencement of the Emergency Provisions Act in June 1987, the statutory right to access to legal advice has been severely qualified. Over half the requests for legal advice were rejected under section 15(5) of the Act. That argument cannot be used to justify the proposed changes in the law of evidence. If the Secretary of State was claiming that power, he should have been able to say that in every case in which application was made for legal advice it was granted. In 50 per cent. of cases, it was not.

Detailed examination of the order also produces a distinct lack of confidence in the Government's wisdom in pursuing such a course. I am particularly concerned by the vagueness of article 3(1), which requires individuals to account for their presence in a particular place. There is no question of legal advice or of being in a police station where such an interrogation might be recorded. There is no requirement for officers to identify themselves, or for the accused to be informed of the crime of which he is suspected.

The Secretary of State says that there will be cautionary notice, but we are expected to pass the legislation before even seeing the form of caution that it will contain. Where will the caution be given, and what record will there be of the replies? Will the accused be cautioned in the back of a Land Rover going up to Castlereagh? Will he be picked up on the Shankill or the Falls and be told, "We believe that you are guilty of this offence. What have you to say about it? I am giving you a caution."? Will there be a proper system, or will there be no tape recordings? The possible lack of a caution, and the circumstances in which a caution is administered, are a fundamental worry. Was a witness present when the alleged caution was administered?

Sadly, many innocent people have lost their lives through being in the wrong place at the wrong time in Northern Ireland. It is worrying that presence in a particular place will in itself give rise to reasonable suspicion. The implications for such cases as that of Oliver Hughes, the brother of one of my constituents killed at Loughall, are terrifying. If mere presence might imply guilt, the scope of the definition of reasonable force as used by the security forces is likely to extend even further. That danger has not been taken on board. In the battle against the paramilitaries we must be guided by our minds as well as by our feelings of revulsion. We must ask ourselves not whether the Government's intentions are honourable, but what will be the likely practical effects of the order.

The abolition of the right to silence is likely to make no difference to the guilty, but will have a detrimental effect on the innocent. The innocent have much to fear, as case law shows. The Secretary of State says they have nothing to fear, but they are the only people likely to be intimidated by their surroundings into making misleading concessions. If he wishes me to, I shall give way to the right hon. Gentleman and cite all the cases, including that of Winston Kerr in Windsor. When he was challenged, police obtained a 25-page confession from him. As a result of the order, we can expect more convictions of the innocent, while the position of the guilty remains unchanged. What better recipe could there be for accentuating the sense of injustice in Northern Ireland?

The Criminal Bar Association has warned that the abolition of the right to silence is likely to constitute a disincentive to investigation by the police. A policing strategy that over-emphasises interrogation at the expense of investigation is not likely to work; it smacks more of inquisition. The order, far from facilitating the work of the police, will provide a barrier against effective policing. The "neutrals" to whom I referred earlier will be further discouraged from co-operating with the RUC. Giving greater powers to the police has traditionally weakened, not strengthened, public confidence in them.

The order involves a shift of authority from the judiciary to the police, the transfer of the trial from the courtroom to the interrogation room, from the Crumlin road court house to Castlereagh. It presumes that the fact of arrest implies a greater degree of guilt than has previously been the case. The preferring of charges will take on much greater significance in the determination of guilt. That is not conducive to public confidence in the system of justice.

The adversarial system of our common law is being replaced by an inquisitorial one. There may be many legitimate arguments about the respective merits of the two systems. I note, however, that continental inquisitorial systems such as those of Belgium and Sweden do not enjoy the full confidence of the British tabloid press. But what we should not forget is that, in democratic countries where inquisitorial systems exist, investigations are quasi-judicial, being closely supervised by examining magistrates. The order does not include any such safeguards for suspects in Northern Ireland, nor will there be any for suspects in the United Kingdom. We would therefore have the worst of both systems.

My fear is that the order will have exactly the opposite effect from that which is intended. It will damage the image of the police and judiciary in Northern Ireland. It will make it harder for elected representatives to give the kind of endorsement of the RUC that the Government expect, and which the Opposition realise can be given only when public confidence exists in fact rather than in rhetoric. This is a profoundly retrograde step, which indicates despair on the part of the Government and will undermine the spirit of the Anglo-Irish Agreement. By turning the screw of repression, the Government wind up the spring of violence.

Several Hon. Members:


Photo of Miss Betty Boothroyd Miss Betty Boothroyd Deputy Speaker (Second Deputy Chairman of Ways and Means)

Rightly, there is a great deal of interest in this debate. I know that Mr. Speaker would wish me to appeal for short speeches so that all hon. Members who wish to participate can do so.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West 5:17, 8 November 1988

The hon. Member for Kingston upon Hull, North (Mr. McNamara) touched frequently on what I consider the crucial issue before the House: how will the order obtain the support and confidence of the people of Northern Ireland? Let us suppose that we meet a constitutional Nationalist from Northern Ireland and say to him, "Yes, there has been a change in the right to silence, which has been considered by lawyers throughout the ages to be one of the absolute rights of a person accused of a crime." How do we persuade that person that the changes, which I believe in general to be right, have been carefully considered and properly argued over and that he, when accused in Northern Ireland, will be dealt with by a law that has gone through the proper process of being "chewed over" in the House of Commons? It will be very difficult to satisfy him of that after today's proceedings.

My right hon. Friend the Secretary of State was unable to answer my question about why the Bill procedure was not used. May I offer an explanation? It is because the Government continue to hanker after the opportunity to go for devolution. Twice since the mid-1970s the position of the minority in particular has been undermined by the attempt at a constitutional gerrymandering of some form of devolved assembly. Of course, that suits the Government. They will say, "Ah, but of course the procedure that we now have to follow in the House of Commons is most defective. We change the criminal law in Northern Ireland by order. It does not give us an opportunity to consider it properly, but it has to be done on the nod. The only way in which that can be changed is by having a devolved assembly." Of course, that is nonsense.

The contents of the order should be contained in a Bill, and what would that mean? Let us suppose, for the sake of argument, that a constitutional Republican is sitting in the Gallery today, saying to himself, "Well, I fear that my cousin may from time to time be on the fringe of violent and IRA activities. I want to be satisfied that he is convicted only after he has committed an offence. I want to be satisfied that my cousin is treated properly and in the same way as any other person suspected of a crime." I would say to him, "My friend, I accept that there are many different views about whether the right to silence should be absolute. Yes, academic views are undecided and divided on this point. There are those, for instance, like myself, who have practised at the criminal bar for a lifetime and, none the less, are prepared to say that the right to silence should be somewhat modified. There are others, like my hon. and learned Friend the Member for Burton (Mr. Lawrence), who take a different view."

I would say to this constitutional Republican in the Gallery: "This issue will be fought out and argued on the Floor of the House of Commons. All aspects of the measure will be argued properly and, when the law finally comes to be applied to you or your cousin, it will be a law that has been properly considered." However, if the order were adopted, the constitutional Nationalist would say, "I have little support for the way in which they do things in Westminster. This sort of measure can go through on the nod by an order." It is because the Secretary of State has a vested interest in trying to show that the procedures in this place are defective that he has chosen the order procedure.

Photo of Mr Ian Gow Mr Ian Gow , Eastbourne

Does any hon. Member, or even my right hon. Friend the Secretary of State, believe that this is a sensible procedure for enacting such fundamental legislation? Does my hon. Friend agree that there would be continuing uproar in this place if we sought to make similar changes for England and Wales by this procedure?

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

I can only say as quietly and as carefully as I can that I believe that our right hon. Friend the Secretary of State had a perfectly good opportunity at the beginning of the debate to explain, in response to a question from me, what disadvantage would be suffered if this matter were dealt with by the Bill procedure, but he did not answer my question.

The fact is that this is being knocked through by the order procedure in a way that can only undermine the confidence of those who believe, or should believe, that Westminster is here to safeguard their rights against the Executive. Surely that is the basis of the case. That is what all of us who believe in what I know is unfashionably called integration argue for. We say to the constitutional Nationalists, "Yes, perhaps there are some Protestants in Northern Ireland who are a bit too close to the game to be able to see sometimes exactly where your rights are, but come to Westminster, where there are those who are detached and have a lifelong interest in the rights of the individual and in personal liberty."

We argue that that is the advantage of an imperial, as opposed to a devolved, Parliament. Those rights are being taken away because, since the early 1970s, the Northern Ireland Office has constantly whored after the idea of a devolved Parliament and because it wishes to say that our proceedings are defective. They are not. They can be used properly, and they should be used properly tonight.

Photo of Mr Robert Maclennan Mr Robert Maclennan , Caithness and Sutherland 5:25, 8 November 1988

The hon. Member for Wolverhampton, South-West (Mr. Budgen) was undoubtedly right to focus upon the impropriety of the means by which Parliament is removing this bulwark of the rule of law.

Whatever view one may hold about the situation in Northern Ireland, hon. Members cannot believe that the method of legislation that we are engaged in today or the manner in which the Secretary of State brought forward this proposal was appropriate. He did so by a written question without any trailer, without any serious press leaks—the way in which the Government usually communicate their information about important matters —and without hon. Members being given an opportunity to question him upon the reasons for the proposal. In saying that he proposes something comparable in England and Wales, the Secretary of State has at least given us some opportunity to discuss it. He has said that he has set up an internal Government committee to review these matters and to consider whether or not the evidence that he will have to deploy is sufficient to bring about a reversal in our legal system, which has widely been seen as a pillar of the rule of law.

The manner in which the procedure was carried out must call in question the motives and the strength of the Secretary of State's case. This afternoon, the Secretary of State gave little evidence that the existence of the right to silence brings about miscarriages of justice. He asserted that many people before the courts in Northen Ireland use their right to silence, but he has not said—he could not say —that that has resulted in miscarriages of justice. By pulling on our emotional heartstrings and calling upon our worry for the judiciary in Northern Ireland, he has suggested that there is some link between what he is doing today and the prospects for restoring law and order. However, he has failed to give the House any signs that he has understood either the significance or the enormity of what he is proposing.

What is guaranteed in other countries by their constitutions is to be swept aside by the House, following a three-hour debate, with about a dozen of the Secretary of State's supporters here to listen to it, and with the full weight of Government Whips ensuring that the legislation will be carried. That is a constitutional outrage, and a monstrous way to proceed. It is only because those of us who follow Northern Ireland affairs have a great deal of sympathy with anyone who is the incumbent of the office of the right hon. Gentleman that we do not express ourselves in even stronger language when talking about him personally. I fear that, when people take up the office that the right hon. Gentleman holds, they lose their sense of perspective of the democratic rights and wrongs which have brought them to the House, and of their attachment to the rule of law that they claim to be defending in Northern Ireland.

The essence of this matter is that the Secretary of State is casting aside not merely the practice in Northern Ireland since the troubles began, but a principle of English law that has existed for centuries and one that is enshrined in the fifth amendment to the United States constitution. That principle is crucial as a guarantee of the right of every citizen in this country to the assumption that he is innocent until proved guilty. In all honesty, that right will no longer be said to exist in the Province. That reversal of the burden of truth, which is a consequence of the Secretary of State's actions, would not stand up in any other system of common law. We are driven to the conclusion that the Secretary of State is dishonouring Parliament by asking us to approve such an order. He is asking us to be, in some way, complicit to that decision.

We are faced with the most repulsive step down the road to the abrogation of the rule of law that the Secretary of State has taken. The right hon. Gentleman is well aware that I have supported him and his Government in their endeavours to bring about the restoration of constitutional normality to the Province. I have been disposed to give him the benefit of the doubt whenever doubt has existed, but there is no doubt about the order.

Photo of Bill Cash Bill Cash , Stafford

Does the hon. Gentleman accept that he agrees with the Anglo-Irish Agreement? Does he also know that in the Irish Republic sections 18 and 19 of the Criminal Justice Act 1984 confer the same permissive powers? How does he square that with what is contained in the order?

Photo of Mr Robert Maclennan Mr Robert Maclennan , Caithness and Sutherland

I believe that the Anglo-Irish Agreement has been tested almost to destruction. With regard to the Republic's legislation, I have never thought it appropriate for the United Kingdom of Great Britain and Northern Ireland to model itself on its legislation. The very differences that exist may be part of the reason why Ireland chose to withdraw from the United Kingdom.

We face a peculiar situation in which the Secretary of State of the Conservative and Unionist party has to pray in aid the Republic's legislation—incidentally, the order will not be implemented effectively by the courts—in support of this repugnant order.

When the Secretary of State was questioned by his hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) about the manner of the legislation, he gave the interesting reply that he was willing to enter into discussions with parties in the House about the mode of that legislation. Was that a serious offer? Is he willing to reconsider how we legislate in this House? Is he willing to meet all parties to discuss these matters? If he is willing, let him say so.

Photo of Mr Robert Maclennan Mr Robert Maclennan , Caithness and Sutherland

That may prove to be something that many of us would wish to follow up. Hitherto, the right hon. Gentleman has not shown himself to be forthcoming on such matters.

The Government's case is not supported by any empirical evidence that what the right hon. Gentleman has proposed will make the slightest difference to conviction rates. It could not. It has not been supported by any independent evidence, because none has been forthcoming.

The right hon. Gentleman mentioned the 1972 report from the Criminal Law Revision Committee. When that report was published, it was met with a resounding dismissal from everyone who considered it seriously. He has paid little attention to the 1981 Royal Commission —the Philips commission—on criminal procedure. In the light of the right hon. Gentleman's neglect of that report, it is worth recalling some of its specific remarks about the right to silence. It is especially important to draw attention to its conclusion about that right.

On page 90 of its report, the Royal Commission stated:

All but one of us incline to the view that any modification to the present law of evidence which aimed at requiring the accused to answer a prima facie case established by the prosecution would be likely to weaken the initial burden of proof that the accusatorial system of trial places upon the prosecution. The accused should not be obliged, indeed, in the ultimate event he cannot be obliged, either to enter the witness box or to mount any defence". Earlier, it said:

It might put strong (and additional) psychological pressure upon some suspects to answer questions without knowing precisely what was the substance of and evidence for the accusations against them; and in consequence what they needed to tell the police in order to allay the suspicion against them. This, in our view, might well increase the risk of innocent people, particularly those under suspicion for the first time, making damaging statements … any attempt … to use a suspect's silence as evidence against him seems to run counter to a central element in the accusatorial system of trial. There is an inconsistency of principle in requiring the onus of proof at trial to be upon the prosecution and to be discharged without any assistance from the accused's silence in the face of police questioning under caution as any part of their case against him at trial. That was weighty opinion, and it was thought profoundly compelling by the the Government of that time, of which the right hon. Gentleman was a member, by all the preceding Secretaries of State for Northern Ireland and by the Law Officers.

No one has hitherto proposed to end the right of silence, and the Secretary of State adopted a cavalier manner in doing so. We shall vote against the order if necessary, but we hope that, in the light of the debate, the Secretary of State will see fit not to press it to a vote.

Photo of Mr James Kilfedder Mr James Kilfedder , North Down 5:37, 8 November 1988

Over the years, I have many times criticised the Order in Council procedure that is applied to legislation and other matters affecting Northern Ireland. Together with my colleagues, I have sought the support of other hon. Members in our condemnation of the autocratic and colonial way in which Northern Ireland is governed. I do not intend to detain the House by repeating everything that I have said in the past. It is all on the record.

Some criticism has been made of devolution. I believe that the hon. Member for Wolverhampton, South-West (Mr. Budgen) should study the work of the late Northern Ireland Assembly. If that Assembly had had this order to consider, it would have spent many hours, days and weeks on it and would have produced an extremely good report. It produced excellent reports, which have been commended ever since.

My Unionist colleagues and I believe that the profound change in the law in Northern Ireland should not be made in advance of a similar change to the law in the rest of the United Kingdom. There are many sensible reasons for amending the existing law, but I am afraid that what will happen—we have already discussed this—is that the change will provoke another attack on Northern Ireland and on the decent law-abiding people of the Province.

By some extraordinary convolution of logic, which is peculiar to politicians, or at least to some, the people of Northern Ireland will be blamed for this change in the law. The blame will be placed, not only on their shoulders, but on the shoulders of the Royal Ulster Constabulary, of members of the Ulster Defence Regiment and of members of the Regular Army, as well as all the judges and everybody else connected with security and the administration of justice in Northern Ireland. My colleagues and I say that it is not fair that everything should he twisted to condemn people who have suffered for 20 long years from obscene terrorism. Against that background, this is a modest measure.

Photo of Mr James Kilfedder Mr James Kilfedder , North Down

I shall give way shortly. I must be brief, because Madam Deputy Speaker issued an order to that effect.

I do not ask the Government to delay this legislation, but even at this late stage I ask them to introduce the legislation promised by the Home Secretary in May this year, when he announced the establishment of a working group that included a representative from the Northern Ireland Office. In a written answer the right hon. Gentleman anticipated that joint action would be taken, because he stated: Since there will be implications for law and practice in Northern Ireland, I am … arranging for an official from his office to serve on the group."—[Official Report, 18 May 1988; Vol. 133, c. 466.] The right hon. Gentleman was referring to the Northern Ireland Office. If that is the right law for Northern Ireland, there is no reason whatever for delaying the introduction of the change in Great Britain. Change is needed. There is constant change in the law.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) talked about the right of silence having existed in its present form for centuries, but at one time under the common law a defendant on a criminal charge could not, at an assize, speak one word in his defence. He was prohibited from doing so on the basis that it would be wrong for a defendant's own words to be used to convict. In time it was seen that a change in that law was necessary. Change took place, and we continue to have change.

The last major change in criminal trials, which was introduced in the House 22 years ago, was opposed bitterly inside and outside the House. It was introduced to get rid of the need for a unanimous verdict when a defendant appeared on a criminal charge. It allowed for replacement by a majority verdict after the jury had disagreed and after a reasonable time. There was an outcry about that, but it was introduced by the Labour Government, by the distinguished former leader of the Social Democratic party, Lord Jenkins as he now is. It was backed by the distinguished former Lord Chancellor, Sir Elwyn Jones, who was the then Attorney-General.

Every change is seen as an attack on civil liberties, but that radical change was found to be necessary. As the then Attorney-General said, there was mounting and formidable evidence that in London at least attempts have been made and are taking place on a considerable scale to corrupt individual jurors. The Attorney-General added: it is difficult to prove these matters by way of evidence." —[Official Report, 12 December 1966, Vol. 738, c. 203.] That was the reply to those who opposed the Attorney-General in the House.

Photo of Mr Martin Flannery Mr Martin Flannery , Sheffield, Hillsborough

I am saddened to hear the hon. Gentleman welcome this draconian measure, which can only deepen the problem. Does he not realise that the Government are acting out of sheer frustration? Their policies are not doing what they want, they have nowhere to turn and, in desperation, they are introducing the measure precisely because they have no real answer to the problem in Northern Ireland.

Photo of Mr James Kilfedder Mr James Kilfedder , North Down

The hon. Gentleman has proved what I said at the beginning of my speech: it is wrong that the order should be introduced separately from changes for the rest of the United Kingdom.

I say this to the hon. Gentleman and everybody else who criticises the order. The changes have been mooted for many years by distinguished jurists and judges. The distinguished Jeremy Bentham, who should be a hero to the hon. Gentleman and other Opposition Members, said in an essay on judicial evidence in 1825: Innocence claims the right of speaking, as guilt invokes the privilege of silence. It was the opinion of that distinguished mind that the existing criminal law operated to protect the guilty and that a change should be made.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

Does the hon. Gentleman recall that, at the time when Jeremy Bentham was writing, the accused had no right to speak in his own defence, which he has now, and there was no police force? We in the Opposition believe that the Government of the workhouses is the Government of the right hon. Member for Finchley (Mrs. Thatcher), and that was the Government of Jeremy Bentham.

Photo of Mr James Kilfedder Mr James Kilfedder , North Down

I shall not get involved in the fight between the Labour party and the Conservative party. It is clear what was in the mind of Dr. Bentham, and I do not wish to depart from that.

The 11th report on evidence of the Criminal Law Revision Committee, which was published in 1972, made proposals for restricting the right to silence. I have a quotation, but as time is short, I shall not read it out.

It is common knowledge among legal practitioners in Britain that hardened criminals manipulate the law to their advantage. Having practised at the criminal bar in London, I know what happens in trials here. When depositions are provided by the prosecution at the commital proceedings to the defence, certain solicitors are reputed to sit down with the defendant or defendants and prepare a defence that can be woven around the prosecution's case. They have the depositions before them and, if the defendant or defendants have not said a word, subsequently at the trial before a jury they can put forward a case that has been carefully prepared to meet, and not to contest, most of the prosecution's case.

Criminals do not even need the help of solicitors to instruct them in how to manipulate the law. Hardened and experienced criminals know that it is better to stay silent and subsequently to produce their evidence, which a jury might accept as the truth or as sufficient to create reasonable doubt.

The Secretary of State said that the object of a criminal trial is to establish the innocence or guilt of the accused. That is all that the law is about. Protection must be seen in that light. In Northern Ireland, terrorists and paramilitary racketeers—sadly, there are far too many racketeers—are living off the people in certain areas. The terrorists are told by the godfathers of obscene atrocities and by their paramilitary masters to remain silent when they are apprehended by the police or the security forces. That is why it was found necessary, in the Irish Republic in 1984, to restrict that right of silence on certain grounds, and there is no problem there compared with our problem.

The arguments that have been used against the Government today could be used against the people of the Irish Republic, and they would not like it. The remarks that have been made are most offensive. I am, have been and will be critical of the Government, but we are now aiming to maintain a balance in the law in Northern Ireland. In my view, the change in the law is a matter of restoring the balance in Northern Ireland. It is common sense not to allow the criminals to mock and manipulate the law and to use it to their own advantage. It is our duty as Members of Parliament to ensure that those evil men are subjected to a sensible law and its sanctions. The people of this country—that includes Northern Ireland as well as the rest of the United Kingdom—expect nothing less of us.

Photo of Mr Patrick Duffy Mr Patrick Duffy , Sheffield, Attercliffe 5:50, 8 November 1988

John Milton admonished his countrymen: Let not England forget her precedence of teaching nations how to live. Since Magna Carta, England has been a light to all nations, establishing and maintaining what, in an earlier age, were called "the rights of man."

The civil liberties of the individual and the limited power of the state, which are enshrined in English common law and the constitution, have been among Britain's greatest contributions to the advance of civilisation. However, that bequest is crumbling under the corrupting influence of Britain's floundering involvement in the quagmire of Northern Ireland.

The mother of Parliaments is being asked today by the Secretary of State for Northern Ireland to revoke one of England's keystone liberties—the right of the accused to be free of the compulsion to bear witness against himself. That freedom is so fundamental to a just society that the founders of the American nation enshrined it in the Bill of Rights. It is a jealously guarded right—and properly so—because it goes to the root of the proposition that an accused person is innocent until proven guilty and should not be obliged to give self-incriminating evidence.

I know that the issue raises fierce emotions. It divides lawyers, because many senior judges support abolition, as we have been reminded by the hon. Member for North, Down (Mr. Kilfedder), whereas the criminal bar fervently opposes abolition.

Any loss of traditional safeguards and any departure from the age-old protections of the common law must be regretted, and it ought to be any society's stated objective to retrieve such safeguards and protections as soon as circumstances permit. The insidious aspect of the presentation made this afternoon by the Secretary of State, apart from its general vagueness, is that no such return —nor the possibility of such a return—appears to be contemplated. Indeed, it is feared that these modifications of the right to silence will become a permanent part of the law, not just in Northern Ireland but in Britain.

Are there any circumstances in which the right to silence can properly be abridged? Is it a right from which we can derogate? The Government in Dublin, as we have been reminded several times, thought so three years ago when the Criminal Justice Bill was enacted. Now the Dublin Government have expressed themselves deeply concerned about that move and have suggested that the 1984 Act was comparatively limited in its effect on the right to silence.

The central questions raised by today's proposals are, first, whether the new measures will help to reduce violence and save lives; secondly, whether they will help to bring about a break in the political impasse; and, thirdly, whether they can achieve those aims without obliging the community to pay too high a price in the loss of traditional safeguards and liberties. The answer to the first question is, probably, yes—at least in the short term. Whether such a reduction would have any significant bearing on the political situation is less clear. The new measures will probably help to put some guilty men away, but they will also reinforce the sense of grievance among those in the Nationalist community who view British policy in Northern Ireland essentially in terms of continuing repressive legislation.

The Secretary of State has complained, in an attempt to justify his extraordinary proposal, that justice is being thwarted. Probably it is. Miscreants have always taken advantage of constitutional protections, which are designed to shield the innocent against the abuse of the state's police powers. Yet the tradition of free men is to make a self-conscious choice that, in the words of another Englishman, Sir William Blackstone: It is better that ten guilty persons escape than one innocent suffer. The problem of Ulster is threatening to unhinge the Government. I agree with the point made in an intervention by my hon. Friend the Member for Sheffield, Hillsborough (Mr. Flannery). The Government's move to abolish protections against self-incrimination follows hard on another over-reaction—the recent press ban on broadcasting interviews with outlawed IRA members. In the battle against violence, democratic Governments have the right to protect themselves, and they must, of course, employ every legal weapon that is available to them. However, they cannot sacrifice fundamental rights without risking the loss of the civilised societies that they purport to protect.

Photo of Mr Barry Porter Mr Barry Porter , Wirral South 5:57, 8 November 1988

You asked hon. Members to speak briefly, Madam Deputy Speaker, so I shall do that.

It takes a great deal for me to stand here and say that I shall be unable to support the Government in the Lobby tonight. The hon. Member for Paisley, North (Mr. Adams), who now resides silently in the Opposition Whips' office, has been known to refer to me in more social atmospheres as a Liverpool Orangeman—a description to which I take no particular exception. I should normally support anything that the Government or the Northern Ireland Office can do to ensure that terrorists, whether the Provisional IRA or Loyalist paramilitaries, are convicted. I have supported such measures in the past and I shall support them in due course. I do not take the view that my right hon. Friend the Secretary of State is Machiavellian in what he is trying to do. By his own lights, he is trying to ensure that those who maim and murder are put where they belong, but, he has got it wrong.

I do not need to rehearse the principles again. A fundamental principle of the law of the United Kingdom is about to be breached, and I do not think that it should be breached in a couple of hours on a gloomy November afternoon in the presence of a couple of dozen hon. Members. I support every word in the speech made by my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) about that point, which I do not need to develop.

At some stage in future we shall have similar legislation for England and Wales—but I hope that it will not be introduced in a similar way. I support the point made by the hon. Member for North, Down (Mr. Kilfedder), that legislation for Northern Ireland should be introduced together with legislation for England and Wales. I have always taken the view that one of the enormous difficulties in maintaining the Union is the myth that Northern Ireland is more separate from the rest of the United Kingdom than Scotland or Wales. However, that is a matter for another debate, although it cannot be right for a fundamental change to be taking place in this way, and I shall take some persuading that the right to silence should be changed anyway.

I have one novel point to make. The right to silence was brought in originally because defendants were illiterate, incoherent and unable to advance their views sensibly when being interrogated. I have the advantage of making a modest living outside the House as an advocate, not at the criminal bar, but in rather dodgier circumstances in Liverpool magistrates court. We had the advantage of carrying out the trial run of interviews being taped. If anybody believes that the common run of criminal is not illiterate, incoherent and unable to express himself, I invite him to come to my office at any time and I shall prove that nothing much has changed over the past 200 years. If the right to silence is to be removed, we must have a carefully considered debate at a proper time. This is not such a debate and it is not the time.

Photo of Mr Michael Foot Mr Michael Foot , Blaenau Gwent 5:59, 8 November 1988

I appreciate the remarks of the hon. Member for Wirral, South (Mr. Porter), and I shall try to reinforce them later in my speech. I shall also try to be brief, as I know that many hon. Members wish to speak.

Let me start with a word of sympathy for the Secretary of State. He has an extremely difficult and dangerous task to perform, and in most cases he does so with great skill and courage. I do not attack his general approach to his terrible problem. Anyone who has had to live through the appalling consequences of terror in Northern Ireland and on the mainland—and we all wake up in the morning to hear and see exactly what has happened—must be listened to when he says that he needs different powers to deal with the problem, and I make my remarks against that background. Nevertheless, the Government are doing something extremely dangerous. They should never have thought of introducing such a measure in this way, and I hope that even at this late stage they may think again.

In the past two weeks, the House of Commons has been presented with two measures that alter fundamental rights upheld for many generations. Furthermore, those measures have been introduced by edict, without any possibility of amendment. Last week, the Home Secretary issued an edict altering the exercise of free speech in Northern Ireland, and presumably that will also happen elsewhere. I protested that we needed a Bill to deal with such an important matter, as we could then consider it more carefully. If we had a Bill in this case, the proposal would certainly not reach the statute book in the form in which it has been presented to the House.

The Secretary of State said that there had already been much argument about the matter, but he did not give the impression in his answers that he had gone into it in great detail. He did not know the essential answers to the most important questions. That is one reason why we have the legislative process. It is a great derogation of the rights of the House for the Government to think that they can abolish them twice in two weeks.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Does not the moral authority of Parliament rest upon the proposition that experts, such as lawyers, advance their arguments for the broad mass of people, as represented by hon. Members, to consider and chew them over? When we legislate through the order-making process, the constitutional safeguards of the individual are abrogated.

Photo of Mr Michael Foot Mr Michael Foot , Blaenau Gwent

I fully agree with the hon. Gentleman and with the protest that he and other hon. Members made at the beginning of the debate. I hope that we shall be able to make a dent at least in the Government's intentions, and that we shall not allow this process to be used again.

The Secretary of State will say that the present method of dealing with legislation in Northern Ireland has been in place for a considerable time—and I remember the procedures that were used when I was Leader of the House —but that is not an excuse. When I was Leader of the House, we were seeking to find new methods of dealing with Northern Ireland legislation. We made significant constitutional changes in Northern Ireland because we believed that the people of Northern Ireland had a proper right to put their case in the House. That is why the change in the numbers was carried. There should be a proper legislative process for dealing with matters affecting Northern Ireland, and people in Northern Ireland have every right to complain if the Government do nothing about it.

We shall shortly be entering a new Session. In his own interests, the Secretary of State should fight for the introduction of a proper process for dealing with Northern Ireland legislation to replace this hole-in-the-corner rough-house. The present method is not a proper way of dealing with such far-reaching measures. The hon. Member for Wirral, South has underlined afresh the case made by those of my hon. Friends who have spoken—that this measure represents a major change in the operation of the law. It has been said that it will be extended to the country as a whole. That is all the more reason for incorporating it in a major Bill.

If the right of evidence and the right of an innocent person to protections that he has hitherto enjoyed are to be reversed in the United Kingdom as a whole, they will certainly not be done by order. Such changes would have to be accompanied by a general change in the law and there would then be no reason whatever why the contents of this order could not be incorporated in a Bill duly presented to the House.

Opposition Members will oppose the change because we believe that the principle is utterly repugnant. It would be a scandal if the House allowed such a measure to go through as the Government originally proposed it, and I am glad that it has been opposed by right hon. and hon. Members on both sides of the House.

The debate has been brief, but I hope that, in his own interests and in the interests of Parliament, the Secretary of State will say to the Government, "Never again must measures of this nature be presented to the House in this form." If the Secretary of State wants to protect his own position and uphold justice in Northern Ireland, that is the proper way to proceed. If the Secretary of State and the Government continue in this manner, they will undermine the authority of Parliament itself.

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton 6:06, 8 November 1988

No hon. Member could have more regard than I have for the courage, determination and integrity of my right hon. Friend the Secretary of State, but he has been badly misled by someone or some group into presenting a completely disingenuous case for an order that is rushed and ill thought out. It will not have my support, and I shall explain why.

My right hon. Friend seems to think that the right to silence is one of the most important obstacles in the way of the conviction of guilty murdering and hateful terrorists. I have seldom heard such nonsense. If there is evidence from eye witnesses, forensic experts, evidence of letters, maps, diagrams and fingerprints, the defendant is likely to be convicted whether or not he has admitted his own guilt.

If there is no such evidence and the police allege only an admission of guilt or an insufficient explanation, the defendant is unlikely to be convicted because juries and judges, even in the Diplock courts—perhaps I should say especially in the Diplock courts—appreciate the ease of fabricating an admission. They usually require other evidence proving its truthfulness. Such a method is on its way—the tape-recorded interview of the suspect by police officers—but it has not yet become universal. Until that becomes universal, it is unnecessary for us to tinker with the right to silence in the belief that what the defendant says will contribute in one way or another to his guilt.

In either of the circumstances that I have outlined, I believe that the existence or otherwise of the right to silence is monumentally irrelevant. If one wanted to wring a confession of guilt out of a reluctant subject one might have to torture him, but of course that is wholly unacceptable and unthinkable. It is precisely because a man who has been tortured might not only confess his guilt, but might well confess his guilt although innocent, that we abolished torture and protected a person accused by giving him the right to say, "I have a right to be silent. I will say nothing. You produce evidence to prove your case."

Without torture, how can one force a man to speak? Can one pretend that what he says will not be used against him later and then use it? No, that is not allowed. Can one trick him by some promise or frighten him by some threat? No, that is not allowed. A guilty man cannot be forced to speak—nor can anything that he says under force be used in evidence against him—because of the danger that an innocent man might incriminate himself.

Those who do not understand our law should not seek to twist and distort it because of their understandable frustration. My right hon. Friend said today, and has said before, that terrorists can abuse and exploit the system by remaining silent. That merely shows whither frustration leads. What sort of right is it if people can be attacked for taking advantage of it? Is that not evidence of the danger of making ill-considered statements in support of ill-considered orders?

Of course my right hon. Friend is frustrated—we all are. Terrorism is appalling and must be stopped. It is deplorable that we cannot do more to stop it. Perhaps if we introduced capital punishment we would be doing more to stop it, but our horror should not blind us to our responsibilities to operate a reputable system of justice. Nor should it blind us into thinking that any interference with the right to silence, however limited or closely defined, will lead to the conviction of more who are guilty. It cannot, and it will not.

Nevertheless, it may surprise some hon. Members to hear that I am not an avid supporter of the right to silence. It is a sacred cow, but it is only a shadow of its former self. To change the metophor, it is a legal ruin, not a safe warm house. Today, one can be forced to answer questions from the Department of Trade and Industry, or to disclose an alibi. What was said to someone other than a police officer or customs official is admissible in evidence against a person. What is said to a police officer until he has sufficient evidence of a prima facie case to caution someone is admissible. If a person says anything at all, he can be asked why he did not say something else. If a person does not give evidence, a judge can make hostile comments, by innuendo if not expressly.

The right to silence can even be a trap for the innocent on occasion. Intelligent jurors, whatever warning they may receive from a judge that it is a man's right to be silent, may naturally ask themselves why the man did not speak or explain himself. In our criminal cases, solicitors often assume that the men they are defending are guilty before having heard anything about the case, and will tell their clients to say nothing. They do so at the very moment when an explanation might have stopped the whole process of the prosecution or a criminal trial.

I am not one of those who pretend that the right to silence is a vital protector of the innocent, as has been claimed in a number of speeches today. That is going over the top, especially in the light of the danger that the right could be a snare for the innocent.

Why, then, should we not merely sweep it away? Because, for all its thinness and ruined state, the right to silence is still one of the significant linchpins of an accusatorial system and we should be cautious about abolishing it. Under this system the police make an accusation and have to prove it. They try their hardest to do so; sometimes they try too hard. Sometimes they are led to falsify, so the citizen must be protected.

Perhaps the time has come for us to consider more seriously the inquisitorial system that is used on the continent, in which the truth of whether the crime has been committed and of who committed it is investigated by a judicial figure. In such circumstances, the accused needs no right to silence because the police will be under less pressure to prove an allegation that may not have come from them in the first place. But while we still have the accusatorial system we should recognise that it is a delicate and timeworn structure that should not be tinkered with without the most careful, cautious and clear consideration.

My second objection is that this measure does not accord with any of these criteria. The Secretary of State gave us a clear sign of the danger of what is being asked of us when he was asked what caution should be given in these four situations. What warning should be given to protect the innocent man and enable him to understand fully the consequences of not speaking? My right hon. Friend could not answer. He said that this had been debated for a long time in the country. If that were so, I should have thought that some conclusion would have been arrived at. Where is it? What is it? My right hon. Friend could not answer.

It has not been fully considered. We are rushing through an ill-considered measure. My right hon. Friend said that the courts would decide. Why should the courts decide what it is our job to decide? Why should we write a blank cheque against the liberty of the individual, cross our fingers and hope that some court will write the law that it is Parliament's job to write? We are democratically elected to write the law, and the judges are there to interpret it. It is not their job to write it. It is wrong of my right hon. Friend to say that the courts will decide the caution.

The measure contains other signs of haste and lack of thought. Following his statement that nothing in the order would oblige an accused person to speak—it contains no provisions for thumb screws or racks, which is good of my right hon. Friend—he said that no guilt was to be presumed from his silence. He said that a man's silence would not advance the case against him. That is untrue. If inferences can be drawn against a suspect from his silence, the case is advanced against him, however rare and carefully defined these occasions are. In some instances the case against an accused will be advanced. The order cannot mean anything else, or there would be no point in bringing it before us.

My third objection is that the legal profession will be overwhelmingly against the change. We do not necessarily have to accept what the legal profession says. We can overrule it, but the profession will add its reasons for opposing the order to those that have been heard in the debate tonight. As the criminal law is administered by lawyers—prosecutors, defenders and judges—should not their opinions be seriously considered and their objections weighed in the balance?

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Does my hon. and learned Friend agree that, if we had followed the proper Bill procedure the legal profession would have been able to offer its opinion of the various safeguards? When the legislation finally became an Act, the profession would then be satisfied that it had played its proper part in contributing to the discussion, instead of which the Secretary of State tells us that he does not understand the legal technicalities. He will leave them to other experts, and we must approve or disapprove on the nod.

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton

Not only that, but such a Bill could have been subject to the Special Standing Committee procedure. The experts could have come along and given evidence under the procedure which the House introduced for just such occasions—occasions when changes touching the liberty of the individual can be carefully and maturely considered across party lines.

My fourth objection is that I do not see how the measure will lead to the conviction of more who are guilty of terrorism or any other crime, and I have already given my reasons for that conclusion.

All the protections that my right hon. Friend has introduced may be irrelevant in practice if there is no absolute right to silence at a trial. Solicitors can already be excluded and prevented from advising their clients by the police. It happens all the time in serious cases under present law, even after the Police and Criminal Evidence Act 1984. Can there be any real confidence that the other procedures offer protection? And when a solicitor has been excluded, how often is a jury persuaded that the alleged words which constitute the only evidence against an accused have in truth been said? That is one of the reasons why, in cases in which the only evidence is an alleged admission of guilt, juries will not convict at the Central Criminal Court, or, for all I know, in courts all over the land.

This is a serious area of the law into which it is undesirable to blunder while the eyes have been blinded by the horror of terrorism and by the frustration of its continuance. My right hon. Friend needs to be cautious. He should not do in Northern Ireland what he would not do in the rest of the United Kingdom.

Yet my right hon. Friend the Home Secretary has laid an order for England and Wales along similar lines. So tonight's measure is not just the thin end of the wedge. It will be the whole wedge, which is also to be driven home without consideration under the full Bill procedure in due course. If my right hon. Friends have no conviction that those measures would survive the proper procedures for changing the fundamental protections offered by our laws, they cannot count on my support, this time or next.

Photo of Mr Seamus Mallon Mr Seamus Mallon , Newry and Armagh 6:20, 8 November 1988

Much has been eloquently said by right hon. and hon. and learned Members about the legality of this order, and it would be wrong of me, as a lay person, to attempt to deal with that aspect. Like the Secretary of State for Northern Ireland, I shall ignore the legalities of this measure and deal instead with Northern Ireland's political realities.

The fundamental flaw that is to be found in this order is not the way in which it has been introduced—although, as a Northern Ireland Member of Parliament, I should certainly like more time to consider it. The flaw is that it is based on the great lie that underlines the Government's whole approach to Northern Ireland—that one can make the law act in such a way that it becomes a weapon with which to defeat terrorism. That is not what the law is there for. The law is there for administering justice, not for fighting a war. The Prime Minister herself has said that she is fighting a war in Northern Ireland, and now she is attempting, through the Home Secretary and the Secretary of State for Northern Ireland, to bend the law in such a way that it becomes an instrument of that war. That is to demean and to diminish the whole process of law.

Another lie underlying the Government's approach is that, if one bends the law to one's advantage, one will be better able to defeat terrorism. That lie must be nailed and challenged in this House. From the point of view of the lay person—from the worm's eye view—such a policy deprives the individual of his right to be deemed innocent until evidence is brought before the courts proving him guilty. It also takes away the individual's right not to incriminate himself. The way in which the order compromises the existing situation alone will create great difficulties in Northern Ireland. If such a change is playing with fire in an ordinary society, it will create a bush fire in a society such as Northern Ireland, given the strife, divisions and endemic violence there.

In 1981, the Royal Commission on criminal procedure identified the basic element in the right to silence as the suspect's vulnerability when questioned by police, which remains as valid today as it did then. The Committee for the Administration of Justice comments: The proposals are likely to make what happens in the police station an even more vital determinant of guilt or innocence than at present, and without adequate control of police interrogation methods, this must be a matter of concern. Removal of the right to silence would be another step towards guilt and innocence being determined not in open courts, not by the judges, but in the interrogation rooms of police stations.

That is of special relevance to Northern Ireland, for three reasons. First, in the investigation by Mr. Justice Bennett, a member of the British Bar, into the way in which the RUC interrogated suspects in Castlereagh and Gough barracks, he found that they used brutal methods to obtain confessions. That is a matter of record not by an Irish nationalist but by a British jurist. For that reason, we must be particularly careful.

Secondly, the same Government who are introducing this measure have already been found guilty by the European Court of Human Rights of inhuman and degrading treatment. Thirdly, the same courts that will be required to administer this order presided over the bizarre and grotesque supergrass trials that substantially eroded confidence in those courts in Northern Ireland. It is for those three reasons that we must oppose and question not only this order but the measure introduced last week and the measure that will, before the month is out, tamper with a free and open franchise. We must register our concern.

Why is this order needed? Is the existing law not adequate? Are not the Prevention of Terrorism Act 1974, the Northern Ireland (Emergency Provisions) Act 1978, the Public Order Act 1986, and the massive powers they give the security forces adequate? Is the measure permitting seven days' detention not sufficient? Is it not enough that people can be refused—as 52 per cent. of them are—access to legal advice for 48 hours, and that a police officer sits in on any consultation between the accused and his legal adviser? Or are people walking free from the courts who should be convicted because of the basic principle and tradition of a right to silence? If such is the suggestion, it must be challenged with the facts.

In the second quarter of this year, 94 per cent. of those charged in Northern Ireland were convicted. In case it should be thought that this is a vintage year, I can tell the House that in 1980, the figure was 94 per cent.; 1981, 93·9 per cent.; 1982, 93·8 per cent.; 1983, 90 per cent.; 1984, 91·4 per cent.; 1985, 90 per cent.; 1986, 95·4 per cent.; and 1987, 94·2 per cent. Is the Secretary of State for Northern Ireland still saying that Northern Ireland conviction rates merit this order's derogation from normal practice? It can be challenged on those grounds alone.

Photo of Mr James Kilfedder Mr James Kilfedder , North Down

The last figures I had for Northern Ireland convictions before the Diplock trials showed that they were no greater than in the rest of the United Kingdom. Perhaps there is some conflict between our two sets of figures. I would like to know.

Photo of Mr Seamus Mallon Mr Seamus Mallon , Newry and Armagh

I am using the Government's own figures in relation to the Northern Ireland (Emergency Provisions) Act 1978, which are a matter of record in the House and in the Official Report.

Are a large number of suspects remaining silent in Northern Ireland and avoiding conviction by doing so? The reality is that that is not the case, and that most convictions are secured as a result of statements by the accused; over the past year, 80 per cent. of suspects pleaded guilty.

I hope that I am not being too cynical in suggesting that this measure is another Government palliative designed to satisfy British public opinion, because the Government can say, "Look what we are doing to get to grips with this problem." Or perhaps it is another sop to Unionism. If it is either of those two things, it is a cynical approach and one that attacks the rights of the individual in attempting to solve a political problem that the Government have not yet properly grasped.

The legal profession is opposed to this measure. It is opposed to it in the North of Ireland. The Secretary of State already has the views about the lack of consultation of the Law Society, the Committee for the Administration of Justice and the Standing Advisory Committee on Human Rights. He has the views of the Criminal Bar Association and the National Council for Civil Liberties. But they are all out of step: the people who are right are those within the Cabinet. It is not the Secretary of State for Northern Ireland, nor the Home Secretary, but the person or people within the Cabinet who are saying, "Let us try to solve the problem by punitive measures." They will not do it now or in the future.

Let me deal briefly with references that have been made to that which pertains in the Irish Republic. I oppose this measure in the Irish Republic, as I do here. The fact that it exists there does not make it right. It is wrong there for the same reasons that it is wrong here. However, there are four major differences there. First, it has never been invoked since it has been introduced in the Republic of Ireland. I do not know whether it is felt that it would not be right to invoke it or whether to do so would be counter-productive, but it never has. There is a right of appeal under the Irish constitution—an appeal which does not exist here, where there is no basic Bill of Human Rights to which to appeal. There is no restriction on access to solicitors, and the Garda involved must have a statutory duty to make information available if there is an investigation in relation to the interrogation of any citizen.

Many of us who are not members of the legal profession are sometimes bemused by the way in which the legal profession approaches things and would question the Government's attitude. Speaking at Cambridge university to the Tory Reform Group on 25 October, the Attorney-General said: The problem with the practice of the right to silence is that guilty people go free because juries are unable to exercise their common sense. We must weigh that against the opinion of Sir Rupert Cross, who, I am told, is the expert on this. He said: One of the objects of the law of evidence is to prevent common sense from having a free rein because there are cases in which to permit it might lead to an unjust result. We are asked here to balance the Attorney-General's opinion against that of Sir Rupert Cross.

The Attorney-General further makes the points that people should not be acquitted by what seems the eloquent exploitation of the rules of the game. I know of no hon. Member who is better equipped to judge what constitutes exploiting the rules of the game than the Attorney-General, if we are to judge by his decision earlier this year in relation to people who have broken the law. That is one of the problems that faces the layman, and it is a matter on which the Secretary of State should think again.

Photo of Bill Cash Bill Cash , Stafford 6:32, 8 November 1988

Listening to the debate, one might be forgiven for wondering whether many hon. Members have read the order. There is no provision in the order forcing a person to give evidence. Article 2(4) says: A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3(2), 4(4), 5(2) or 6(2). Many of the speeches that we have heard from the Opposition, referring to the fifth amendments, thumbscrews and other matters are a load of hot air. It has always been established—I can quote references if I have to—that a trial judge can comment on the fact that the accused has decided not to give evidence. There is nothing in the order to require an accused to give evidence.

The hon. Member for Kingston upon Hull, North (Mr. McNamara) said, in refusing to give way to me, that no real comparison could be made between the position in Southern Ireland and the United Kingdom on a matter of this kind. The plain fact is that the Republic has sections 18 and 19 of the Criminal Justice Act 1984. It may be that for a variety of reasons the judges have decided not to invoke it, but the reality is that the Republic has passed that legislation. It is perfectly compatible that we should pass similar legislation, particularly having regard to the determined way in which terrorists on both sides of the argument are deliberately determined not to make any statements, so as to ensure that no justice is carried out under which they may be convicted.

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton

Why does my hon. Friend say that, if a man is told that he ought to say something and that, if he fails to do so, such inferences will be drawn against him as may be proper, that is not an obligation upon him to speak?

Photo of Bill Cash Bill Cash , Stafford

My hon. and learned Friend, for whom I have the greatest possible respect, has not read the order. The point is that each of these important provisions says that the accused, after he has been called upon by the court, is merely put in that position if he chooses to exercise his right to silence. The crucial word then is "may": the court or jury may draw the inference. In other words, there is no compulsion to do so. Therefore, he preserves his right to silence on the one hand and the court is merely empowered—permitted—to draw an inference which, as I have already said, is a principle already entrenched in case law.

Photo of Mr John Fraser Mr John Fraser , Norwood

The hon. Gentleman cannot believe that.

Photo of Bill Cash Bill Cash , Stafford

I am simply looking at what the order states, and it is on that basis that I conclude my argument.

Photo of Sir Nicholas Fairbairn Sir Nicholas Fairbairn , Perth and Kinross 6:36, 8 November 1988

I apologise to the House for not being present throughout the debate, but let me briefly say something about the right of silence, which was introduced into all European systems of law following the Spanish inquisition. It was equally required because, until, I think, 1898 in England and 1892 in Scotland, an accused was not allowed to give evidence, so anything that he did say, whether under torture or not, could not be corrected, explained, denied or added to. Once the accused was entitled to give evidence, the right to silence became absurd.

The right to silence has never been part of the law of Scotland, in that, until 1923, all persons accused were immediately brought before a magistrate so that they could explain their position. Therefore, the innocent confirmed that their story was consistent from the beginning and the guilty were unable to make up a false defence once they knew what the evidence was. That was reintroduced in the Criminal Justice (Scotland) Act in 1980, under my guidance. It is important that nobody accused should be able to hide behind a barrier when, after all, if he is to be convicted, the idiot witness is not allowed the right of silence. However stupid he is, he will be convicted on the compulsive say-so of the witness. Therefore, we should be cautious about the emotion of the right to silence.

However, I caution my right hon. Friend the Secretary of State. To introduce by order as emotive and structural a matter as this is imagined to be by the law of England is a questionable constitutional change. Section 10 of the Bill of Rights of 1891 in the United States, where the concept of the right to silence is supposedly enshrined in the fifth amendment, says that no man shall be compelled to give evidence against himself. That is purely a protection against torture. If one is to have verbals, the right to silence is no protection against anything. Therefore, it is important that we should clarify in our minds the fact that for the accused to make his position clear at the earliest possible moment is in his interest and in the interests of justice. To do it before a magistrate and not in the secrecy of a police station ensures that what he says is there for all to see.

Since that has been the law of Scotland, which is supposed to be the civilised part of the civilian tradition, the Roman tradition of Europe, I see no reason why the law of England should not at last be brought up to date, and with great respect to those in Northern Ireland, I do not know why they are worried.

Photo of Mr John Fraser Mr John Fraser , Norwood 6:39, 8 November 1988

The order has been described as constitutionally outrageous, and that is not an exaggeration. We have an order instead of a Bill and we have been allowed about an hour and a quarter of Back-Bench contributions. Apart from the Government Front Bench, barely a good word has been said about the order by any hon. Member from either side of the House.

The order is being applied not only to terrorist offences. It changes the law fundamentally as it applies to a harassed housewife who may be accused of a shoplifting offence or to someone who may be accused of careless driving. It applies throughout the range of crimes. It is a matter not simply of emergency or terrorism; it is a very broad change which we are urged to agree after only two or three hours of debate.

The Secretary of State said that it had been discussed exhaustively. I do not think that that is true. That certainly was not the view of the Law Society of Northern Ireland in its press release which protested that it had not been consulted about a change in the law of 'such a fundamental nature'. It is true that the Criminal Law Revision Committee in 1972 recommended a change in the rules. There was plenty of debate about that recommendation, and the preponderance of the views expressed about the recommendation of that committee was rejection. The conclusions of that committee certainly were rejected by a Conservative Government between 1972 and 1974, and they were not implemented by the Labour Government between 1974 and 1979. There was another opportunity in the Police and Criminal Evidence Act 1983, but they were rejected there.

Photo of Mr John Fraser Mr John Fraser , Norwood

I must keep my remarks short. I gave up time for others, and it is only fair that I should not be interrupted.

In the current legislative year, there was an opportunity to change the law in the Criminal Justice Act 1988, yet here we have an order which is a constitutional outrage. An announcement made in the last 10 days of October is to become the law of the land in Northern Ireland on 8 November. That must be a constitutional outrage, particularly in view of the very limited time that hon. Members have had to discuss it.

The Secretary of State said that it is a modest change. It is not a modest change. It changes the burden of proof in criminal proceedings. Of course, there are isolated exceptions, but it means that the silence of a defendant is to be taken as corroboration of the evidence which is presented by the prosecution. That is a fundamental change in the nature of the law of evidence that has existed in this country for hundreds of years.

Of course, there are occasions when we have made absolute offences which apply to small things such as watering milk and the breathalyser test. However, in other cases, very sensibly, we have looked at circumscribing the right of the defence to ambush the prosecution, and we introduced the notice of alibi. If the Government were bringing forward a considered arrangement for giving notice of defences which ambush the prosecution, that might he a reasonable way of approaching the matter. Instead, within a matter of two and a half hours, they propose fundamentally changing law which has existed for hundreds of years.

The Secretary of State complained that 50 per cent. of those accused in Northern Ireland refuse to answer questions. He is really saying that that 50 per cent. of accused people ought to be playing a part in convicting themselves. He is saying that the combination of an accusation and some evidence allied to the exercise of the right to silence leads to a greater degree of conviction. That must be self-incrimination, which is a very fundamental change. It is not a modest change, as the Secretary of State suggested. It runs counter to the rights which were transplanted from England to the United States and developed in the American constitution. I am sure that the Secretary of State should be aware of the dangers to his own policy of providing a new grievance which can be developed in the United States.

The measure is introduced in Northern Ireland in circumstances where there is less protection than in England. I instance four. First, there are occasions in Northern Ireland—I am told by my hon. Friend the Member for Newry and Armagh (Mr. Mallon) that it involves about half the cases—when the accused is refused access to a lawyer in the first 48 hours; therefore, there is less protection there for a person who wishes to exercise the right of silence.

Secondly, in Northern Ireland there is no duty solicitor scheme such as operates under the Police and Criminal Evidence Act in England where a duty solicitor is available at all hours of the day and night to assist when somebody is accused and held for questioning at a police station. That protection is absent in Northern Ireland.

Thirdly, the Secretary of State does not even know what kind of caution will be used. Article 3 of the order contains no words to imply that a caution ought to be given at all. It says that somebody is to be officially informed that he might be prosecuted", although in later articles it states that he has to be told in "ordinary language", which is what is meant by a caution. It seems grossly unsatisfactory to make such a fundamental change in the law of evidence and for the Secretary of State not even to be aware of the caution that is to be administered.

Lastly, there is the weakness of the absence of jury trial in Northern Ireland. We can all understand the reasons for having Diplock courts, but there is the final absence of the protection of the scepticism of 12 citizens who may be much more willing to question the way in which statements have been taken and admissions made than would a judge sitting alone.

I have very little time, but I wish to make one detailed criticism of the order. If we were in Committee, we could spend several mornings considering the detail of the order. I have only two minutes to consider some of the detail that I shall draw to the attention of the House. Article 3 does not say that the defendant must actually be accused of a crime.

Article 3(1)(a) states that at any time when somebody is being questioned by a constable trying to discover whether or by whom the offence had been committed"— if he— failed to mention any fact relied on in his defence. an inference can be drawn from that failure later in proceedings. From the wording of article 3, it is clear that a person can be questioned about the suspicion of somebody else having committed a crime, yet, because he fails to mention a salient fact during his questioning about somebody else having committed a crime, that can be held against him in his trial.

Taking some words from article 3(1)(b)—they are not out of context—if the accused, on being officially informed that he might be prosecuted, failed to mention any such fact, inferences could be drawn. As an illustration, if somebody is told that he might be prosecuted for careless driving and he shrugs his shoulders—as most of us would in the circumstances—and hopes that nothing will happen, the fact that he shrugged his shoulders and then introduced a defence means that an inference may be drawn against him and he could well be convicted by the shrug of his shoulders. But for the grace of God, anybody could be convicted in such circumstances. If a store detective says to a housewife, "You may be prosecuted for taking these goods out of the shop," the order applies equally as it does to the terrorist.

We are not debating a special arrangement for terrorist offences. I do not doubt that the abolition of the right to silence will lead to more convictions. I do not doubt that the abolition of the right to silence will enable some guilty people who now go free to be convicted. But some innocent people who now go free will also be convicted. One of the planks of our constitution is that it is better that 10 guilty men go free than that one innocent man is convicted. That plank is being removed in a telescoped debate without proper consideration. That is not the way to defeat terrorism. It is the way to give terrorists new friends, new alibis, and new grievances. The order should be rejected by the House.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers) 6:50, 8 November 1988

In the short time available, I shall seek to answer some of the points raised in the debate and to correct some of the deeply misplaced and, at times, hysterical criticisms that have been made, particularly by the hon. Member for Kingston upon Hull, North (Mr. McNamara) and, I am sorry to say, the hon. Member for Caithness and Sutherland (Mr. Maclennan).

The right hon. and learned Member for Warley, West (Mr. Archer) asked whether, under article 3, someone who brought forward for the first time at trial some facts or explanation which he might have been expected to produce earlier could be convicted on that alone. It is important for the House to know that, under article 2(4) of the order, A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in the articles referred to.

My hon. Friends have raised the question of the caution. As they will know, the matter of the caution, until the Police and Criminal Evidence Act 1984 and the codes of practice, was always a matter for the judges. The Lord Chief Justice and the judiciary of Northern Ireland are considering, at the request of the Government, the appropriate procedures that will have to be followed by the police when questioning suspects if Parliament approves the order.

That advice will be issued to the Royal Ulster Constabulary as an amended version of the present judge's rules, which apply in Northern Ireland, or as administrative guidance to the police pending replacement of the judge's rules by a code of practice under the provisions of the forthcoming police and criminal evidence order, which is being laid and is currently in draft for consultation in Northern Ireland. There will be an opportunity for the House to scrutinise it in the context of that procedure.

The hon. Members for Kingston upon Hull, North and for Sheffield, Attercliffe (Mr. Duffy) mentioned tape recording. The reasons why the tape recording of suspects in terrorist cases cannot be made known to the outside world must be clear to anyone who considers the matter. The House should remember that there is the safeguard that all interrogation of terrorist suspects in Northern Ireland is carried out in one of three holding centres under closed circuit television surveillance by uniformed police officers. That safeguard applies to every such suspect.

Photo of Mr Kevin McNamara Mr Kevin McNamara , Kingston upon Hull North

Closed circuit television surveillance does not alter the fact that the contents of the tape recordings are not known.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers)

I will leave the hon. Gentleman to ponder his own question.

The right to a solicitor was raised by the hon. Member for Newry and Armagh (Mr. Mallon). Under the Northern Ireland (Emergency Provisions) Act 1987, any terrorist suspect has the right to a solicitor. In 1987, 212 were given immediate access to a solicitor. For reasons set out in the Act, which will be well understood by the hon. Gentleman, there are reasons why in some terrorist cases there may be a delay. However, 264 were given access in periods up to 48 hours and after 48 hours everyone had the right of access to a solicitor.

Some hon. Members have sought to argue that this is a hasty measure, which is not carefully considered and is some sort of knee-jerk reaction to terrorism. That is not so. The order is part of a reaction to serious crime generally —I am grateful to the hon. Member for Norwood (Mr. Fraser) for recognising that—in England, Wales and Northern Ireland. Conditions have changed since the Royal Commission, which was set up in 1978 and reported in 1981, and present-day experience in England, Wales and the Province appears to be significantly different from what the Royal Commission found.

My hon. Friends will remember that the debate stems from long before the work of the Royal Commission. The Criminal Law Revision Committee made its 11th report in June 1972. Members of that Committee were respected figures. I was astonished to hear the hon. Member for Kingston upon Hull, North saying that nobody who supported the order could believe in the liberty of the citizen. When one considers that the members of the CLRC were led by judges of immense experience, headed by Lord Justice Edmund-Davies and many other distinguished judges, those remarks seem deeply out of place.

The hon. Member for Newry and Armagh, whom I deeply respect, contrasted my right hon. and learned Friend the Attorney-General with Professor Rupert Cross. He said that he would prefer his opinion to that of my right hon. and learned Friend. Professor Rupert Cross was a member of the CLRC which unanimously advocated this provision and in all his books he has constantly argued for it in the most persuasive way.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers)

The conclusions of the Royal Commission, based on the evidence then available to it, seem somewhat surprising now. Paragraph 4.46 of the report says: to summarise the research indicates that the privilege not to incriminate oneself is not used by suspects in the great majority of cases and keeping silent altogether is said to be very rare. It found that the right of silence was not at that time a right that the generality of suspects chose to exercise.

The conclusions were based on fairly limited research by Mr. Paul Softley in only four police stations. It suggested that only 4 per cent. of those interviewed failed to answer at all and only 8 per cent. failed to answer some questions. I invite the House to compare that with what is now known from experience in serious criminal matters in England and Wales and from statistical evidence in relation to suspected terrorists in Northern Ireland. As my right hon. Friend the Secretary of State told the House, nearly half of all suspected terrorists fail to answer any question of substance. I hope that the House will begin to see why men of good will support the order and why learned judges and jurists throughout the country believe that it is high time that we introduced a measure of this sort.

I shall seek to allay one other misconception. Several hon. Members, in today's debate and in public comments, appear to believe that the changes proposed involve a shift in the burden of proof from prosecution to defence. That is a complete misunderstanding. The prosecution will continue to have to prove its case according to the same high standard, which is that the court and jury should be sure beyond reasonable doubt of a defendant's guilt. The case must be proved by evidence. Mere silence in the face of accusation will never be enough. That is made expressly clear in article 2(4), to which I referred earlier.

The changes allow the court or jury, applying their common sense, to draw whatever inference seems appropriate from the silence of the accused and to consider in doing so the comments of the prosecution and the judge. Sometimes an adverse inference would be wholly inappropriate. The judge may be expected to draw that to the jury's attention. On other occasions, the failure to put forward an innocent explanation may cry out for clarification. To deny the jury the right to hear the comments of the prosecution, the defence and the judge on that failure and to ponder its significance before making up their minds is to introduce an artificial restraint, which is no safeguard to the innocent and provides unnecessary advantage to the guilty.

The measures proposed in the draft order are founded in common sense. They will restore some of the balance of fairness between prosecution and defence. They will increase the likelihood that justice will prevail in our courts and, by doing so, they will make the path of serious crime more hazardous for those striving to undermine the rule of law.

Question put:

The House divided: Ayes 274, Noes 210.

Division No. 477][6.59 pm
Adley, RobertDover, Den
Alexander, RichardDunn, Bob
Amess, DavidDurant, Tony
Arbuthnot, JamesDykes, Hugh
Arnold, Tom (Hazel Grove)Emery, Sir Peter
Aspinwall, JackEvans, David (Welwyn Hatf'd)
Atkins, RobertEvennett, David
Baldry, TonyFairbairn, Sir Nicholas
Barnes, Mrs Rosie (Greenwich)Favell, Tony
Beaumont-Dark, AnthonyFenner, Dame Peggy
Beggs, RoyField, Barry (Isle of Wight)
Bellingham, HenryFishburn, John Dudley
Bevan, David GilroyFookes, Miss Janet
Blaker, Rt Hon Sir PeterForman, Nigel
Boscawen, Hon RobertForsyth, Michael (Stirling)
Boswell, TimForth, Eric
Bottomley, PeterFox, Sir Marcus
Bottomley, Mrs VirginiaFranks, Cecil
Bowden, Gerald (Dulwich)Freeman, Roger
Bowis, JohnFrench, Douglas
Brandon-Bravo, MartinFry, Peter
Brazier, JulianGale, Roger
Bright, GrahamGardiner, George
Brooke, Rt Hon PeterGarel-Jones, Tristan
Brown, Michael (Brigg & CL't's)Gill, Christopher
Buck, Sir AntonyGilmour, Rt Hon Sir Ian
Budgen, NicholasGlyn, Dr Alan
Butler, ChrisGoodhart, Sir Philip
Butterfill, JohnGoodlad, Alastair
Carlisle, John, (Luton N)Gorman, Mrs Teresa
Carrington, MatthewGow, Ian
Cash, WilliamGower, Sir Raymond
Channon, Rt Hon PaulGrant, Sir Anthony (CambsSW)
Chapman, SydneyGreenway, Harry (Ealing N)
Chope, ChristopherGreenway, John (Ryedale)
Clark, Hon Alan (Plym'th S'n)Gregory, Conal
Clark, Dr Michael (Rochford)Griffiths, Peter (Portsmouth N)
Clark, Sir W. (Croydon S)Grist, Ian
Colvin, MichaelGround, Patrick
Coombs, Anthony (Wyre F'rest)Gummer, Rt Hon John Selwyn
Cope, Rt Hon JohnHamilton, Hon Archie (Epsom)
Couchman, JamesHamilton, Neil (Tatton)
Currie, Mrs EdwinaHanley, Jeremy
Curry, DavidHargreaves, A. (B'ham H'll Gr')
Davies, Q. (Stamf'd & Spald'g)Hargreaves, Ken (Hyndburn)
Davis, David (Boothferry)Harris, David
Day, StephenHaselhurst, Alan
Devlin, TimHayes, Jerry
Dickens, GeoffreyHayhoe, Rt Hon Sir Barney
Dorrell, StephenHayward, Robert
Douglas-Hamilton, Lord JamesHeathcoat-Amory, David
Heddle, JohnMoynihan, Hon Colin
Heseltine, Rt Hon MichaelMudd, David
Hicks, Mrs Maureen (Wolv' NE)Neale, Gerrard
Hicks, Robert (Cornwall SE)Nelson, Anthony
Higgins, Rt Hon Terence L.Neubert, Michael
Hill, JamesNewton, Rt Hon Tony
Hind, KennethNicholls, Patrick
Hogg, Hon Douglas (Gr'th'm)Nicholson, David (Taunton)
Hordern, Sir PeterNicholson, Emma (Devon West)
Howard, MichaelOnslow, Rt Hon Cranley
Howarth, Alan (Strat'd-on-A)Oppenheim, Phillip
Howarth, G. (Cannock & B'wd)Owen, Rt Hon Dr David
Howell, Rt Hon David (G'dford)Page, Richard
Howell, Ralph (North Norfolk)Paice, James
Hughes, Robert G. (Harrow W)Parkinson, Rt Hon Cecil
Hunt, David (Wirral W)Patnick, Irvine
Hunt, John (Ravensbourne)Patten, John (Oxford W)
Hunter, AndrewPawsey, James
Hurd, Rt Hon DouglasPeacock, Mrs Elizabeth
Irvine, MichaelPorter, David (Waveney)
Irving, CharlesPortillo, Michael
Jack, MichaelPowell, William (Corby)
Jackson, RobertPrice, Sir David
Janman, TimRaffan, Keith
Jessel, TobyRaison, Rt Hon Timothy
Johnson Smith, Sir GeoffreyRedwood, John
Jones, Gwilym (Cardiff N)Renton, Tim
Jones, Robert B (Herts W)Riddick, Graham
Jopling, Rt Hon MichaelRidley, Rt Hon Nicholas
Key, RobertRidsdale, Sir Julian
Kilfedder, JamesRoe, Mrs Marion
King, Roger (B'ham N'thfield)Ross, William (Londonderry E)
King, Rt Hon Tom (Bridgwater)Rossi, Sir Hugh
Kirkhope, TimothyRost, Peter
Knapman, RogerRowe, Andrew
Knight, Dame Jill (Edgbaston)Rumbold, Mrs Angela
Knowles, MichaelRyder, Richard
Knox, DavidSackville, Hon Tom
Lamont, Rt Hon NormanScott, Nicholas
Lang, IanShaw, David (Dover)
Latham, MichaelShaw, Sir Giles (Pudsey)
Lawson, Rt Hon NigelShaw, Sir Michael (Scarb')
Lennox-Boyd, Hon MarkShelton, William (Streatham)
Lester, Jim (Broxtowe)Shephard, Mrs G. (Norfolk SW)
Lilley, PeterShepherd, Colin (Hereford)
Lloyd, Sir Ian (Havant)Shersby, Michael
Lloyd, Peter (Fareham)Sims, Roger
Lord, MichaelSkeet, Sir Trevor
Luce, Rt Hon RichardSpeed, Keith
Lyell, Sir NicholasSpicer, Michael (S Worcs)
McCrindle, RobertSquire, Robin
Macfarlane, Sir NeilStanbrook, Ivor
MacGregor, Rt Hon JohnSteen, Anthony
MacKay, Andrew (E Berkshire)Stern, Michael
Maclean, DavidStevens, Lewis
McLoughlin, PatrickStewart, Andy (Sherwood)
McNair-Wilson, Sir MichaelStradling Thomas, Sir John
McNair-Wilson, P. (New Forest)Sumberg, David
Madel, DavidTapsell, Sir Peter
Malins, HumfreyTaylor, Ian (Esher)
Mans, KeithTaylor, John M (Solihull)
Maples, JohnTaylor, Teddy (S'end E)
Marland, PaulTemple-Morris, Peter
Marlow, TonyThompson, D. (Calder Valley)
Marshall, Michael (Arundel)Thompson, Patrick (Norwich N)
Martin, David (Portsmouth S)Thornton, Malcolm
Mawhinney, Dr BrianThurnham, Peter
Maxwell-Hyslop, RobinTownend, John (Bridlington)
Mayhew, Rt Hon Sir PatrickTrippier, David
Mellor, DavidTrotter, Neville
Meyer, Sir AnthonyTwinn, Dr Ian
Miller, Sir HalVaughan, Sir Gerard
Mills, IainWaddington, Rt Hon David
Mitchell, Andrew (Gedling)Wakeham, Rt Hon John
Mitchell, David (Hants NW)Waldegrave, Hon William
Moate, RogerWalden, George
Molyneaux, Rt Hon JamesWaller, Gary
Montgomery, Sir FergusWalters, Sir Dennis
Moore, Rt Hon JohnWard, John
Morrison, Sir CharlesWardle, Charles (Bexhill)
Warren, KennethWolfson, Mark
Watts, JohnWood, Timothy
Wells, BowenWoodcock, Mike
Whitney, RayYoung, Sir George (Acton)
Widdecombe, Ann
Wiggin, JerryTellers for the Ayes:
Winterton, Mrs AnnMr. Kenneth Carlisle and
Winterton, NicholasMr. Michael Fallon.

Question accordingly agreed to.

Resolved,That the draft Criminal Evidence (Northern Ireland) Order 1988, which was laid before this House on 20th October 1988, be approved.