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Mrs. Fyfe: I shall address my remarks to amendment No. 13. It is an important matter, but all of us discussing the amendment must beg the indulgence of the Committee at this hour of the night. I appreciate that the present wording is an improvement on the original. However, there is still the huge matter of corroboration contained in this part of the Bill. As has been said, there could be endless debates among professors of Scots law about whether the provision amounts to a diminution of the right of corroboration, which is a centuries-old aspect of Scottish law. It is certainly arguable that inference from someone's silence plus any old piece of evidence, no matter how worthless, is hardly the strength that we have at present in Scots law, in which corroboration is required.
This loss is important in itself. It might be the case that the matter can be debated among legal experts, but in that case we should not be rushing tonight to legislate to remove the requirement for corroboration when we have not had the benefit of that expertise.
I should also point out that the law of corroboration is centuries old. It has seen us through wars, civil riots, commotions and disturbances, and there was no diminution of the corroboration rule during those times. I do not diminish the dreadful events of Omagh for one moment, but we have been through dreadful times these past centuries, and we have not taken this step.
There has not been time for any substantial debate. We have not had the benefit of advice from the Front Bench, from people who know Scots law inside out, or from those whose expertise lies in that area. For those reasons, I urge my hon. Friend the Minister of State to withdraw this part of the Bill so that we can have a proper look at it.
Earlier tonight, I asked my hon. Friend the Minister to confirm that the Bill would be reviewed by the Scottish Parliament. I did not mean to spring something on him unexpectedly, but the matter needs to be clarified. The Scotland Bill provides that measures to deal with terrorism remain with the United Kingdom Parliament, but it also says that Scots law and the police are matters for the Scottish Parliament.
We need clarity on that aspect of the Bill. In what way will any further look at the Bill in six months or on a yearly basis be undertaken? Will it be done in this Parliament, or will it be the job of the Scottish Parliament? I hope that the matter does not arise in the first place, and that the Government will withdraw this part of the Bill so that we can have a more careful look at it, and we do not simply throw out something that has existed for centuries because we are worried about the current circumstances, when we have gone through so much before.
Mr. Connarty:
I adhered to the request of the Whips not to make a Second Reading speech, but I still have to put my points on the amendments in context. I make the point that we try to counter terrorism with the rule of law so the law must be effective, naturally, but also as transparent as possible so that it continues to gather the support of the people who trust us to make it the best opposition to terrorism and violence. We are looking not for infallibility but, as my hon. Friend the Member for Sunderland, South (Mr. Mullin) said, credibility. In the part of the Bill that relates to Scotland, we have a problem of credibility.
I remind the Committee that I asked a couple of questions in an intervention. One was the simple question whether the opinion of a police superintendent that a person was in one of the named organisations plus the person's silence would lead to a conviction. We had a clear statement from the Minister of State, Northern Ireland Office my hon. Friend the Member for East Kidbride (Mr. Ingram) that that was the case. I then asked a question about clause 1(10) on Scots law. I wished to establish that the same simple equation--the opinion of a police officer and silence--could lead to a conviction in Scotland. That is why I and other hon. Members tabled an amendment. We wished to raise the matter specifically and name the word "corroboration", which the hon. Member for Edinburgh, West (Mr. Gorrie) said was normally evidence from two different sources, two pieces of fact, or separate pieces of evidence for the same fact. Unfortunately, subsection (10) does not do that. It is such a massive change in Scots law that the simple amendment deserved some consideration by the Government. The
amendment stated that in Scotland we would require corroboration before the second part of subsection (10) would apply. The second part states:
I welcome some of the amendments, but feel that some are insufficient while others perhaps go too far. I welcome Government amendment No. 61, but Government amendment No. 62 needs to be explained because it seems to include conviction for past membership of an organisation.
I can think of three recent occasions when people have come to see me. They were active members of the Ulster Volunteer Force when the UVF had not pledged itself to a non-violent course. They fled Ireland when the last ceasefire finished. The UVF demanded that they be reactivated, but in the meantime, those people had put lives together and fled to Scotland.
If someone in, for example, the Real IRA had decided before Omagh to get out and to flee to Scotland, under Government amendment No. 62 he could be charged with having been a member of that organisation. Although he might not have taken part in or supported any terrorist activity, he might still be gaoled.
Amendment No. 10 deals with the inference from silence. It would remove the words "in England and Wales" and therefore would extend to Scotland, but I do not see the opinion of the officer dealt with in any other amendment.
Dr. Godman:
In attempting to be fair minded in our criticisms of the legislation, we ought to refer to subsection (4)(b). At least now in Scotland such a suspect, before being questioned, would be permitted to consult a solicitor. Presumably, even a solicitor who was only half alive would urge a client to deny being a member of a proscribed organisation rather than to exercise his right to remain silent.
Mr. Connarty:
That may well be the case, but the point is that one has to lie if one is a member of a proscribed organisation rather than remain silent and, as happens in the United States of America, not have one's guilt inferred from that silence.
In respect of Scotland, there is nothing to address the opinion of the police officer. Amendment No. 13 would delete all of subsection (10). That is inadequate because, if I interpret it correctly, that would mean that the Bill did not extend to Scotland. That is not the solution that we are seeking, which is to insert corroboration into the process rather than remove Scotland from the Bill's jurisdiction. An amendment that was not selected would have allowed the question of corroboration to be dealt with by the Government, in the hope that they would respect the tradition.
Our credibility will be undermined if we proceed with the Bill as it stands. In one fell swoop, we will retract from the process of law in Scotland the need to have corroborated evidence. That will lead people to worry that, if corroboration is not needed for this legislation, other criminals--perhaps drug traffickers--could be dealt with without corroboration. That would erode the very basis of Scottish law. I am disappointed that corroboration is not being dealt with. Perhaps the Government will think seriously during the Committee stage about how they might take that point on board.
Mr. John McAllion (Dundee, East):
The amendments deal with the admissibility of evidence that is not at present allowed in Scottish courts, which is that the opinion of a senior police officer should constitute evidence of an accused's membership of an illegal organisation and that an inference can be drawn that any silence on the part of the accused about belonging to such an organisation constitutes guilt.
The problem centres on the inference to be drawn from the silence of the accused. The position in Scotland is different from that in England. In Scots law, there is no general right for the courts to draw inferences from the silence of the accused. Only in specific circumstances can such inferences been drawn in Scottish courts. The Lord Advocate told me that those include a judicial examination before a sheriff on petition because, in such circumstances, the accused has the right to be represented by a solicitor. Indeed, that is the only occasion on which inferences can be drawn from such a silence in Scots law. It is different in England and Wales, where there is a much wider right to draw inferences from the accused's silence.
Owing to that difference, under the original draft of the clause the accused could be found guilty in Scottish courts solely on the evidence of a senior police officer, who asserted that he or she was a member of an illegal organisation. To deal with that problem, the Government introduced subsection (10) of new section 2A, in clause 1, which brings the position in Scotland into line with that elsewhere in England and Wales, so that, before a guilty verdict can be found, the evidence of the police officer has to be corroborated by the inference to be drawn from the silence of the accused. With the inclusion of subsection (10), the position in Scotland would be better than it might have been, but it would also be much worse than it is at present. That seems to be the problem.
It would be wrong to support amendment No. 13, which would make matters worse by withdrawing subsection (10), leaving the position in Scotland much worse than that in England in Wales. One could then be found guilty in Scotland simply on the basis of the evidence of a senior police officer and no one in the Committee wants that. Equally, it would be pointless to support amendments Nos. 3 and 10, which are entirely irrelevant to the position in the courts in Scotland. Therefore, I cannot support the Opposition amendments.
I must take this opportunity to protest about the weakening of the Scots law of corroboration. Undoubtedly, the clause represents such a weakening of that law, which has been around for a long time, as my hon. Friend the Member for Falkirk, East (Mr. Connarty) said. That is particularly important in respect of Northern Ireland because, as many hon. Members will know,
Scotland is in many ways closer to Northern Ireland than any other part of the United Kingdom. In Scotland, we find both the Unionist and the nationalist traditions, particularly in the west. There is much contact between Scotland and Northern Ireland and, on occasion, it is illegal and of a terrorist nature.
I recognise the Government's need to remain vigilant, through the police and the courts, to ensure that they can control any terrorist activity between Scotland and Northern Ireland. However, the real question that we should be asking ourselves is whether the measures weaken or strengthen the fight against terrorism in Scotland. I have to tell my hon. Friend the Minister that the banned organisations included in the Bill have virtually no support anywhere in Scotland. He will know that Celtic park in Glasgow is a place where one is likely to find much affinity with the nationalist cause in Ireland. Recently, at a match at Celtic park, there was a minute's silence in respect for those who had lost their lives at Omagh. Almost 50,000 people were present and only four idiots tried to disrupt the silence by shouting out. All four were thrown out of the ground and roundly booed by the rest of the supporters of both Celtic and Dundee United.
There is evidence to show that those people have no support anywhere in the United Kingdom. We have to ask ourselves whether, if we create injustices, we will begin to change that balance. If we begin to arrest and imprison innocent people and to deny to accused people the civil and legal rights that currently exist, will we change the balance and begin to build support for terrorist organisations of that sort--support that does not at present exist? It seems to me that accepting police opinion as evidence in a court of law--something that is not acceptable in Scots law at present--represents a serious weakening of that law and the rights of the accused under it.
Similarly, denying the right of silence is much more difficult to do in Scots law, but it will now be made much easier as a result of the changes in the Bill. Finally, withdrawing the presumption of innocence, which is not done in Scots law now but will be done in future if the clause is upheld, represents a further weakening.
"where the court draws an inference as mentioned in subsection (6) above any evidence that he belongs to the organisation shall be sufficient evidence of that matter."
The amendment would change that part to take account of what for centuries has been the spirit and fact of Scots law, namely that evidence must be corroborated from two different sources.
1.15 am
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