Mr. Beith: I feel strongly about what the Parliamentary Secretary has just said, because it is most unfair. Had the schedule for which I voted in the Committee of the whole House been accepted instead, I would still have expected the Minister and her civil servants to comb through it to ensure that it would achieve its intended effect, and to table relevant amendments where necessary. Indeed, I would have expected nothing else, so she cannot criticise me and others for performing the same service in respect of this schedule.
Jane Kennedy: I simply wanted to put on the record that, in my opinion, criticisms of the Government's defence of a schedule that was supported by the whole House are unfair. Indeed, there are hon. Members on the Opposition Benches of the Committee who voted for the schedule.
Mr. Öpik: I want to reassure the Parliamentary Secretary that it was not my intention to criticise her, the Government or those who proposed the schedule, which it is our purpose to discuss. My plea, as my right hon. Friend the Member for Berwick-upon-Tweed said, was simply for her to ensure that it will prove to be workable.
Jane Kennedy: I am grateful for that reassurance.
Mr. Maples: The Parliamentary Secretary picked up on the fundamental principles to which my hon. Friend the Member for Gainsborough and I referred. However, the fact that a Bill has secured its Second Reading does not mean that the House has agreed to every detail in it. If that were so, there would be no need for Standing Committees. We are not arguing about the Bill's fundamental principles, for which the House clearly voted[Interruption.] Well, we are not trying to do that in this debate; we are considering points of detail. The Parliamentary Secretary seems to be saying, ``The House voted for the schedule, so we don't need to discuss it.''
Jane Kennedy: Absolutely not. I was simply putting my opinion on the record. We are discussing and carefully scrutinising a schedule that was supported by the whole House and, in that regard, the Committee has so far conducted itself perfectly properly.
Mr. Michael: As my hon. Friend said, the Committee is behaving perfectly properly, but does she note the interesting admission by the hon. Member for Stratford-on-Avon that, in previous debates, he and his colleagues have indeed tried to argue against the Bill's fundamental principles?
Jane Kennedy: I shall not try your patience any further, Mrs. Roe; I shall return to the substance of the amendments.
Mr. Gordon Prentice (Pendle): I do not want my hon. Friend the Parliamentary Secretary to leave the issue of cross-party support for the schedule without my informing the Committee of a newsletter from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), which states:
Jane Kennedy: As the hon. Member for Lewes (Mr. Baker) has said, Liberal Democrat members of the Committee represent all four strands of opinion, which is nothing new.
We touched on the serious matter of the reversal of the burden of proof, which I prefer to describe as the creation of a primary offence with various defences. We discussed that in one of our earlier debates, but I am glad to have the opportunity to put the position clearly on the record. We discussed that in one of our earlier debates, but I am glad to have the opportunity to put the position clearly on the record.
Amendment No. 50 would have no effect; it would make no difference. As I shall attempt to demonstrate in a moment, there are many Acts that contain the so-called reversal of burden of proof, so hon. Members are mistaken when they say that there are not many precedents. In some the word ``show'' is used and, in others, the word ``prove''. I have checked with parliamentary counsel and it appears that, in this context, the two terms are totally interchangeable. The standard of proof that an accused person has to satisfy is identical, whichever term is used. I suspect that the hon. and learned Member for Harborough is more interested in the principle of the matter than the semantics. That brings me on to the amendments tabled by the hon. Member for Gainsborough.
The first and most obvious pointthis explains why I do not like the term ``reversal of burden of proof''is that, in the Bill, as with any other criminal offence, it remains the responsibility of the prosecution to prove to the court beyond reasonable doubt, as hon. Members have said, that the accused committed the offence with which he or she is charged. Unless and until each and every element of the offence has been proved, the person remains innocent. That principle remains at the heart of English criminal law and the Bill does not depart from it.
The formulation of legislation based round a principal offence, to which there are a number of defencesexceptions as they are called in the Billis nothing new. Perhaps it might be helpful to give the Committee a few examples. In the Forgery Act 1861, section 34[Interruption.]with which hon. Members are familiar, provides that
Section 2(1) of the Homicide Act 1957 provides that a person who kills another shall not be convicted of murder if he was suffering from diminished responsibility. Section 2(2) provides that
Mr. Maples: The Parliamentary Secretary has enumerated some very serious criminal offences; murder, indecent assault, paedophilia, rape and forgery. I have not specifically researched this, but I suspect that the reason for those exceptions where the reversal of the burden of proof was introduced was that there had been cases in which people had used that as their defence and got away with it. In subsequent legislation, the burden of proof in such circumstances was reversed. That is not so with this Bill[Interruption.] The right hon. Member for Cardiff, South and Penarth may want to intervene on the Parliamentary Secretary. I note that since he ceased to have control over the National Assembly for Wales, it has seen sense and is having an inquiry into the matter, rather than simply accepting our legislation.
The offences cited as examples by the Parliamentary Secretary are serious and there is a reason for the exception. We have not yet tried in this case, so we do not know. If the Bill became law and people used that defence and got away with it, one could understand the Parliamentary Secretary returning to say that the law must be changed. That is not the case; she has not cited a relevant example.
Jane Kennedy: Not yet, but I am coming to that. There are other examples in the Criminal Justice Act 1988 and the Chemical Weapons Act 1996.
Mr. Leigh: Chemical weapons?
Jane Kennedy: Let me make my point, because the Committee may be interested. Section 2 of the Chemical Weapons Act 1996 creates offences relating to the use, development, possession and so on of a chemical weapon. Section 2(6) provides that in proceedings for certain of the offences
Mr. Beith: The Parliamentary Secretary has cited examples in which people seem to have carried out murder, rape and the manufacture, possession and trafficking of chemical weapons in circumstances that make them appear guilty, but for which exceptions are provided. How will people who have been legitimately engaged in country pursuits for years feel about being compared to murderers, rapists, paedophiles and traffickers in chemical weapons? Does she not realise that the offences covered in the Bill are in a totally different league?
Jane Kennedy: I am coming to the exceptions, but I want first to deal with some of the protestations from the Committee.
I gave the example of the Chemical Weapons Act 1996, which was enacted during the previous Parliament. All the representatives of the official Opposition in the Committee, with one or two exceptions, were members of that Parliament; not one of them voted against or spoke against the Chemical Weapons Bill.
It is worth pointing out that an offence with defences features prominently in animal welfare legislation and I now come to examples that are closer to the issue under discussion. The Deer Act 1991, the Protection of Badgers Act 1992 and the Wild Mammals (Protection) Act 1996 all contain a basic offence, which is not committed if the person concerned can demonstrate that his or her behaviour fell within the terms of a number of exceptions. Those Acts are directly analogous to the Bill.
There is a good reason for sometimes reversing the burden of proof in legislation. It generally appears when it relates to matters that are within the knowledge of the defendant. I shall give an obvious example. There are many instances in which it is unlawful to commit a certain Act, but it is lawful to do so if the person concerned has a valid licence. The requirement is placed on the person to demonstrate that he or she has that licence. That is obviously sensible because it is easier and more practicable for the person concerned to demonstrate that he or she has a licence than for the prosecuting authorities to prove that he or she does not. That principle applies to the Bill.
Hon. Members will see that the terms of the exceptions concern matters within the knowledge of the person who is hunting. For example, it is easier for someone who has been hunting with dogs to demonstrate that he or she was seeking to retrieve a rabbit or hare that had been shot or that he was acting with the permission of the landowner than for the prosecuting authorities to prove the contrary.
|©Parliamentary copyright 2001||Prepared 8 February 2001|