Predictably, the Secretary of State shakes his head and mutters under his breath that that is not true, but what about the words of Michael Clancy of the Law Society of Scotland? He is a distinguished representative with no partisan view. He is in hospital and I am sure that the whole House would want to send its
best wishes for a quick recovery. He is someone of real substance in Scotland—the deputy secretary of the Law Society—and he was quoted in The Herald last November as saying,
This is not just tinkering. This is the abolition of the right to silence.
Mr. Clancy said that it was not merely a modification or a qualification, but the abolition of the right to silence in Scotland.
The Scottish Council for Civil Liberties described the Government's proposals in this area as "ill-considered" and even the liberal, conservative or revolutionary—depending on how one thinks of it—Glasgow Bar Association warned that clause 28 might well conflict with articles of the European convention on human rights.
To make matters much worse, that major change has been tagged on to the Bill as a mere afterthought with only minimal consultation. Indeed, the proposal virtually or completely to abolish the right to silence in Scotland was introduced into draft statute two weeks and three days after the consultation period on the right to silence had been closed. In rushing ahead with such proposals, Ministers even ignored the advice of their own advisers, the Scottish Law Commission. To try to sneak in that change under the wire and to ignore the advice of their advisers displays a degree of contempt and arrogance that is breathtaking even by the Government's standards.
Will the Secretary of State or the Under-Secretary of State explain why such a fundamental change was introduced at such a late date? What is the reason for the sudden decision by Ministers? The official justification offered by the Minister of State in the other place was that the prosecution should have the same right as judges to comment on an accused person's silence, but that is no justification at all. The fact that the right to silence has already been eroded is not a reason for, justification of or explanation why it should be eroded still further.
Moreover, the prosecutor is already able to point out that Crown evidence is uncontradicted. As the Law Society of Scotland has noted, allowing the prosecution to comment further will only discourage accused persons from refraining to give evidence and the right to silence will inevitably be undermined. I therefore urge the Government to think again on that matter and to listen to what will be reasoned debate in the Standing Committee.
I must discuss two major omissions from the Bill. We already tackled one in our interventions—the lack of provision for new machinery for considering alleged miscarriages of justice. Of course, I welcome the Secretary of State's announcement that he has established the Sutherland committee, which will report on that matter no later than the summer of 1996. Now that the committee has been set up, it is right that that complex subject should not be decided on precipitately, but why has it taken so long for the committee to be established?
The Royal Commission on criminal justice in England and Wales was appointed in spring 1991 to consider that matter, among others, in respect of England and Wales. It reported in June 1993 and the Government have acted on its recommendations by establishing the new criminal cases review commission only last week. Why then has it taken so long for a similar committee to be established in Scotland? Clearly, there have been more high-profile examples of miscarriages of justice south of the border— that remains a fact—but is the Secretary of State seriously arguing that there is no concern about the matter in Scotland?
The second notable omission from the Bill concerns the question of the not proven verdict. I would be the first to concede that there are passionate advocates on both sides of that argument and, for that reason, the question should be decided in Parliament on a free vote. When the matter is raised on Report, there will be a free vote among my colleagues in the Opposition on whether to retain or abolish Scotland's third verdict in Scotland.
I have long campaigned for the abolition of the not proven verdict, which is a bad and unnecessary verdict. Indeed, Sir Walter Scott described it as
that bastard verdict, illogical, contrary to legal principle and wholly indefensible.
Since then, many other people have come to that opinion. It neither clears nor convicts the accused and, as a consequence, it undermines the fundamental principle that a person is innocent until proved guilty.
As a verdict, it leaves the accused and the victim hanging in limbo and for the rest of us it leaves a permanent question mark. The accused person may well be acquitted but will still bear a stain on his or her character. The accused may never be tried again but may never be able to clear his or her name. It is as unjust to the accused as it is to the victim and the victim's family.
Obliging a jury to choose between a guilty or a not guilty verdict, as is the case in every other country, means that the accused and the victim at least know where they stand. More importantly, the presumption of innocence that is at the heart of our Scottish legal system demands that if the Crown cannot prove its case "beyond reasonable doubt", the accused should be completely cleared.
Not proven has some backers among the legal fraternity and among the criminal fraternity, because it increases the chance of acquittal in a difficult case. It is also popular among some juries because it enables them to avoid a difficult decision. Undoubtedly, it is an attractive proposition for defendants who view it as an alternative to conviction and gaol.
In the White Paper on which the Bill is based, the Government make it clear on page 49 that
Although the remit of the Royal Commission did not extend to Scotland, the Secretary of State undertook to consider the implications of the Commission's recommendations in the Scottish context".
The Secretary of State has hardly dealt with some of the issues that fall into that category. For the record, I shall tell the House what the Royal Commission on criminal justice in England and Wales had to say about the not proven verdict, as it is germane to the debate. It states:
During our deliberations we considered the case for introducing into England and Wales the Scottish verdict of 'not proven'. This is available in Scotland as an alternative to 'not guilty' although it still counts as an acquittal. Most of those who gave evidence to us did not favour such a verdict. We too regard it as an unsatisfactory option, particularly from the point of view of the defendant, who is left with a cloud hanging over his or her reputation. If the jury does not convict, it means that the prosecution have been unable to discharge the burden of proof and the defendant should in our view be entitled to a verdict of not guilty.
In one short, concise and economic paragraph, the royal commission, which studied that matter in some depth, came to precisely the right conclusion. My opinion is that,
for the Scottish criminal justice system and the public, it is an anomaly and an anachronism and it should be consigned to the dustbin of history.
Finally, on the resource implications of the Bill, the explanatory and financial memorandum states that it is to be "cost neutral". Frankly, that claim stretches all credulity. Indeed, I remind the Secretary and the Under-Secretary of State of Lord McCluskey's description of that claim in the House of Lords as "cloud cuckoo land".
I appreciate that there are difficulties in producing detailed estimates of the additional expenditure required to implement the Bill's provisions, but I understand that the Government provided some estimates of the financial implications in the consultation paper.
Will the Secretary of State now act on the suggestion of the Law Society and assure us today that we can see the information on which that cost-neutral estimate was made? In that way, hon. Members may have a proper reasoned debate about the Bill's financial implications. It is vital that we have that debate, because it is widely recognised that the fiscal system in particular is overburdened and under-resourced. If the Bill is to he enacted on a cost-neutral basis, it will have serious implications for the way in which justice is delivered in Scotland.
Far from the House of Commons, and even further from Ministers' offices in St. Andrew's house, crime and its impact are the overriding concerns for millions of ordinary Scots, who are told that crime statistics are falling but see in their daily lives a totally different picture. They know what Ministers simply refuse to learn: that the roots of crime are deep in deprivation arid poverty, in gross inequalities and stark financial inequities that have grown during the Conservative party's period in office. Those causes are fed by the unemployment that is still so damagingly high in Scotland.
Crime and criminality hit us all, some much more than others, and cost everyone in society a vast amount in human and financial terms. That is why those tinkering knee-jerk measures go nowhere near far enough to tackle the crime crisis that affects Scotland today. That is why the Bill should be taken away and looked at again and that is why the House should vote for the reasoned amendment. Although we shall not vote against Second Reading, I commend the reasoned amendment for the attention and support of the entire House.