HC Deb 26 April 1995 vol 258 cc896-907

'.(1) The Secretary of State shall bring forward within one year of the passing of this Act an order making provisions in respect of Scotland similar to those in Part II of this Act.

(2) No order under subsection (1) above shall be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.'.—[Mr. McFall.]

Brought up, and read the First time.

Mr. John McFall (Dumbarton)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to discuss also amendment No. 42, in clause 31, page 20, line 17, leave out '24' and insert '15'.

Mr. McFall

This is a small but important new clause for the criminal justice system in Scotland. We find ourselves in an anomalous position with regard to England and Wales. The Bill makes provision in England and Wales for a commission to examine miscarriages of justice, but there is no such provision for Scotland.

In Scotland, there is a real and growing disquiet about the Scottish Appeal Court's ability or willingness to consider possible miscarriages of justice. Lawyers are becoming more and more aware of how difficult it is to get any case re-examined in Scotland.

There is a growing feeling that changes are needed if justice is to be done. A few months ago, the Scottish Office produced a consultation paper on the subject. It was clearly written by civil servants who understand the problem but, alas, there has been no action on it.

If one talks to the legal fraternity in Scotland, judges and lawyers, one finds that all agree that it is a myth that the miscarriages of justice recently discovered in the past few years in England and Wales are unlikely to happen in Scotland because of the superior legal system there. The truth is that, in Scotland, we are less likely to face up to the possibility that they may exist.

At the moment, in Scottish gaols, a number of prisoners are loudly and persistently proclaiming their innocence. Their cases have been taken up by their respective Members of Parliament. The case of George Beattie has been taken up by his Member of Parliament. There are also the cases of Raymond Gilmour from Paisley, and the ice cream wars prisoners, Thomas Campbell and Joseph Steel. The former is now on a hunger strike. He recently broke his hunger strike, but, while being transferred from hospital back to prison, he stated that he would be going back on hunger strike. Another two prisoners are Peter Hurtt and Alex Hall.

There is a real danger in that situation. Pressure is building up, and fuelling the argument for some kind of extra-legal body to deal with miscarriages of justice. We do not want that in Scotland. We want parity of esteem. We want the same conditions to apply in Scotland as apply in England and Wales. Therefore, there should be immediate legislation giving the Scottish Appeal Court all the powers it needs to deal with possible miscarriages of justice—increased powers to review evidence, to examine witnesses, to hear evidence of someone else's confession and to reconsider a jury's decision when the interests of justice demand.

We have had four consultation papers during the past year or so in Scotland telling us what to expect, but, alas, no action has been taken. In Committee on the Criminal Justice (Scotland) Bill we have debated similar provisions, but again, the Government are not forthcoming.

At the moment in Scotland, a committee composed of the great and good in the Scottish legal establishment is being set up to consider the miscarriages of justice issue. No doubt its views will be well worth hearing, but it must not be allowed to disguise the reality. Change is needed now. One has to be forgiven for taking the cynical view that that committee has been set up by the Government in order to avoid change.

The committee is under the distinguished chairmanship of Professor Stuart Sutherland of Edinburgh university. But it will not report until the summer of 1996, and, by the time the Government consider its report and give their view, there will be a general election.

England and Wales will have a criminal appeal body to which miscarriages of justice can be referred, yet for at least five years, Scotland will not have a similar body. That brings the Scottish criminal justice system into disrepute. It lowers the esteem of the Scottish criminal justice system, and I do not see why that should be allowed to happen.

I have asked the Secretary of State for Scotland to report publicly in June or July this year on the work of that committee, which has now been sitting for six months, but no cognisance has been taken of that request. By allowing Scotland to be out of step with England and Wales, a disservice is being done to the Scottish criminal justice system.

The case for a body to examine miscarriages of justice in Scotland has been put not only by the laity, by individuals contacting Members of Parliament, but by those in legal circles. Only about a year ago, a paper was delivered by the second most important judge in Scotland, Lord Ross, the Lord Justice-Clerk. He said in his paper that the creation of an independent tribunal would involve legal and constitutional difficulties, but we needed to tackle the problem quickly. He said: It thus seems that such a new body if brought into being would have an important part to play in remedying miscarriages of justice in the criminal justice system. Indeed unless such a new body is created, there will be some cases where one cannot be confident that means exist within the criminal justice system as presently constituted for remedying miscarriages of justice which may have occurred. That, coming from the second most important judge in Scotland, is a damning indictment of the Scottish criminal justice system. By their neglect, the Government are delaying the matter until beyond the next election.

6.15 pm

I mentioned the second most important judge in Scotland, but the most important judge, the Lord President, Lord Hope, several weeks ago liberally interpreted the law to allow evidence to be led in an appeal case. Five months later, his fellow judges in Scotland, the noble Lords McCluskey, Morison, Morton and Cowie, considered his judgment, and said that it was incorrect. They said that the interpretation of the law as Parliament laid down meant strict interpretation. The Lord President was overruled by five subordinate judges.

That tells us that, at the very top in Scottish legal circles, there is a tension and a frustration because cases concerning miscarriages of justice which are pertinent to the Scottish legal system cannot be listened to. The judges do not have the flexibility, because Parliament has put them in a straitjacket in the interpretation of the law.

That situation is obviously inadequate, and it is fraught with great difficulties and dangers when there is such disparity of view between the judges. Lord Ross, commenting on Lord Hope's original decision, said that it was not competent for a judge to modify the language of an Act of Parliament in order to bring it into accordance with his own views of what is right or reasonable. Lord Ross continued: In my opinion, parliament has enacted clear provisions as to the requirements that must be satisfied if a miscarriage of justice is based upon the existence and significance of additional evidence which was not heard at the trial, and the court is bound to give effect to what parliament has said. The Government are allowing no latitude on the part of those judges—judges who recognise that there is a situation to be remedied but about which they can do nothing. That situation can be remedied instantly by the adoption of the new clause. That would ensure that there was a level playing field between Scotland and England and Wales.

Tonight, I must nail the myth that the Scottish criminal justice system is superior to that in England and Wales—it is not. Common problems affect the justice systems on both sides of the border. They need urgent attention. I bring the position to the attention of Parliament so that they will receive that urgent attention in Scotland, and so that people who have a genuine grievance can have their cases heard in the Appeal Court in Scotland, as will happen in England and Wales.

We owe that not just to those people, but to the public, and to the Scottish criminal justice system. I do not want that system brought into disrepute. That is why the new clause has been tabled, and why I hope that the Government will give it the most serious attention.

Mr. Beith

I was surprised by some of closing remarks of the hon. Member for Dumbarton (Mr. McFall). I thought that he had tabled the new clause in this form to ventilate the issue, and that he had got it very loosely within order so that it could be discussed in the context of the Bill. I did not think that he would seek to enact a clause in this form. Were he to do so, he would be doing what is repugnant to most of us: creating primary Scottish legislation by statutory instrument tacked on to Bills on England and Wales and, in this case, Northern Ireland. That is no way to legislate for Scotland, and no way to legislate on such an important matter.

Mr. McFall

I thank the right hon. Gentleman for his comments. I agree with his comments on primary legislation, but we have had an add-on, piecemeal approach to Scottish criminal justice, and frustration with that has made me come to the Dispatch Box tonight.

Mr. Beith

Exactly so. That is what I took the hon. Gentleman's original intention to be, but we must not imitate deplorable Government practices in relation to Scottish law. I shall take him at what I thought to be his original intention: to ventilate the issue, and perhaps to add a little urgency to the consideration that has begun on whether a parallel body should exist in Scotland, and, if so, what form it should take.

I understand that the degree of consensus that we have achieved in England about the form that such a body might take by no means exists in Scotland, although there is increasing recognition that a problem needs to be resolved.

Dr. Norman A. Godman (Greenock and Port Glasgow)

As someone who takes a close interest in law reform, may I tell the right hon. Gentleman that we have no choice in these matters? The Government frequently introduce Scottish legislation that is tacked or welded on to English legislation. I would much prefer that a measure of this sort were debated within the confines of a Law Reform (Miscellaneous Provisions) (Scotland) Bill, but Opposition Members have no choice in the matter.

Mr. Beith

I should like to debate such a measure in a Scottish Parliament, but that is another story. It would not be satisfactory to carry the new clause, and thereby to ensure that the body in Scotland is created by a statutory instrument that is incapable of amendment although the matter is very complex.

We have had detailed discussions tonight about what the provisions for England, Wales and Northern Ireland should be, and we found that continuing dissatisfaction exists with the wording of the Bill, even as it stands. We spent some time on the group of amendments before last discussing the interpretation of the arrangements by which an investigating police force is found.

It became clear that the Bill did not do what the Minister appeared to think it was doing. Setting up such a body in Scotland, which has a different background of criminal law, a different judiciary, and different assumptions about the nature of the body required, does not bear thinking about. The issue must be tackled by separate, primary Scottish legislation.

It was reasonable, however, that the hon. Member for Dumbarton brought the matter before the House, simply to give the consultation that has been embarked on in Scotland a greater sense of urgency than appears to exist, distinguished though the individuals who are engaged in that consultation are. To the extent that he is trying to give it a push, I support him in his endeavours.

Dr. Godman

I have some sympathy with the observations of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), but how long do we have to wait for that separate Scottish legislation—several years? Will we have to wait while a commission is set up to protect individuals' interests in England, Wales and Northern Ireland? Why should we be treated separately? A real problem exists in relation to the House of Commons. I, too, would like a Scottish Parliament dealing with such matters, but, until that day dawns, we must often deal with these issues by way of English, or predominantly English, legislation.

The Minister knows that. The last time he and I exchanged differing views about law reform was during the debate on the Criminal Justice and Public Order Act 1994, some 40 per cent. of which referred to Scotland, partially or exclusively. In these Houses of Parliament, we are engaged in a less than desirable game of leapfrog. That is shown by the measures on child law reform. In some aspects, statutory care provision for children in Scotland was well ahead, by way of the Social Work (Scotland) Act 1968. Now, however, we are still debating the Children (Scotland) Bill, whereas south of border, such legislation has been on the books for some five years and more.

My hon. Friend the Member for Dumbarton (Mr. McFall) was right to base his argument on parity of esteem. I am anxious that Scotland maintains its independent legal system and its unique Scots law. However, if reform takes place in Northern Ireland, England and Wales, similar reform should be introduced at the same time for Scotland.

I have a great deal of trust in and respect for our sheriffs and judges, for the legal concept of corroboration, and for our jury system, but mistakes are made, and such a body would enable redress of a grievance to be made quite quickly. I shall not argue therefore that we should wait for separate Scottish legislation by way of, say, a Law Reform (Miscellaneous Provisions) (Scotland) Bill. Such Bills come to the House every three or four years. Why should we wait? Let us have this commission.

Mr. Mullin

Does my hon. Friend agree that it is a measure of the complacency that has prevailed lately in the Scottish Office that no Minister from the Scottish Office is even present on the Government Benches?

Dr. Godman

Again, that surprises me not. I remind my hon. Friend that I was fortunate, or unfortunate, enough to sit on the Standing Committee that considered the Criminal Justice and Public Order Act. We had to rely on, admittedly, a Scots-born Minister who has a degree from one of our universities, but who has not practised law in Scotland.

Mr. Mullin

He cannot be all bad.

Dr. Godman

I think he is all bad, but he is a fair-minded adversary. My hon. Friend raises an important point.

As my hon. Friend the Member for Dumbarton suggested, Professor Sutherland's report will not be published until the summer of 1996. Whatever the Minister may say, I should have thought that we would be close to an election in the summer of 1996, if we had not had one in the spring of 1996. When welcome reform is taking place elsewhere in this multinational state of ours, it is essential in terms of maintaining public confidence in the legal system that Scotland should also benefit from that reform.

Mr. Nicholas Baker

I simply point out to the hon. Gentleman and to the hon. Member for Sunderland, South (Mr. Mullin) that, only yesterday, my colleague the Under-Secretary of State for Scotland debated that matter in the Committee considering the Bill that was mentioned by the hon. Member for Dumbarton (Mr. McFall). I shall have something to say about that. That is why my hon. Friend debated it there, rather than here.

Dr. Godman

That is an excuse of sorts.

Mr. McFall

The Minister is correct; the Under-Secretary of State for Scotland debated the matter with me in Committee. However, I am here, while the Under-Secretary of State is not, which shows our desire for the proposal. I put on record the fact that this desire goes across party lines. We were so accommodating to the Minister that I made the offer that Opposition Members would meet Law Officers and Ministers to discuss the issue. Sadly, that offer was rejected, which shows the Government's neglect of the issue and their apparent indifference and apathy.

6.30 pm
Dr. Godman

I am grateful to my hon. Friend for that intervention. The Under-Secretary of State for Scotland, the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton), apart from his native courtesy, is another fair-minded adversary. He is also an advocate, and he might have been able to point out some of the reasons why he, not only as a Minister but as an advocate, cannot accept the new clause, or has serious reservations about it.

A number of cases to which my hon. Friend the Member for Dumbarton (Mr. McFall) referred have created considerable unease among many people in Scotland. The respect that the overwhelming majority of people in Scotland have for the legal system would be enhanced by the setting up of an independent body.

When I was a member of the local review committee at Edinburgh prison, I frequently interviewed prisoners who claimed that they were innocent of the charges of which they had been convicted in the sheriff courts or in the High Courts in Edinburgh and elsewhere. Some of those prisoners were patently attempting to shoot a line to the interviewer from the local committee. I believe that almost all the prisoners I interviewed with a view to helping to determine whether they should be given release under licence had justly been found guilty of, in some instances, the most horrible crimes.

The Scottish legal system is not superior to the system south of the border; mistakes can be made. Recourse to a commission would provide an acceptable framework for the assessment of judgments that are being challenged on the basis of an individual's innocence.

Despite the fact that we seek to tack the provision on to English legislation, something to which we have become accustomed, the new clause is important and it should obtain cross-party support. If it is right for England, Wales and Northern Ireland, it has to be right for Scotland.

Mr. Trimble

We heard at the outset of the debate a powerful speech by the hon. Member for Dumbarton (Mr. McFall), with which I entirely concur. I understand that he has raised the matter in the form of a new clause simply to debate it.

I am sure that he would not want operating in Scotland the atrocious system of legislation by order which we have to endure in Northern Ireland. I sympathise with him in his frustration at the prospect of having to wait several years for equivalent legislation in Scotland. We have had to endure such a wait far too often in Northern Ireland. It is a matter of considerable pleasure to me that we have been able to jump Northern Ireland into the text of the Bill, so that the commission will operate there.

I rise to speak not to the new clause but to amendment No. 42, which, as hon. Members who served on the Standing Committee will recognise, is one that I tabled in Committee. I am glad that Labour Front-Bench Members have tabled the amendment for discussion this evening.

I underline the importance of amendment No. 42. It would make available to the commission supplementary powers with regard to material pertinent to any of its inquiries which happened to be within the Scottish jurisdiction. That is an important point, although it will not arise often. In Committee, the Minister rightly said that there would be few if any cases in which the situation would arise, but he then said—I thought that this was a curious statement—that, if the situation did arise, there would generally be no difficulty in relying on informal co-operation to acquire such material.

If we intend to rely on informal co-operation to acquire documents, why does clause 16 give the commission power to obtain documents? The power to obtain documents should be exercisable wherever documents relevant to an inquiry happened to be. Amendment No. 42 would achieve that aim, and I urge it again on the Minister.

Mr. Gordon McMaster (Paisley, South)

I associate myself with the remarks made by my hon. Friend the Member for Dumbarton (Mr. McFall). The reasons for tabling the new clause are clear and were explained fully by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who understands the frustration of Scottish Members when provisions for Scotland are tagged on to legislation that is not Scottish. On this occasion, a provision has been missed out, although there will be benefits not only for England but for the other parts of the United Kingdom. Like other of my hon. Friends who have spoken, I look forward to the day when there is a Scottish Parliament within the United Kingdom where these matters can be properly discussed.

Over the past few years, including the time before I was elected to the House, I have been involved in the case of Raymond Gilmour, which has attracted considerable media attention because there are at least reasonable doubts about his guilt. Having studied the case, I am convinced that he is innocent. He has now been in gaol for more than a decade for a crime that he probably did not commit. It would be improper to go yet again into all the details of that case; suffice it to say that when the makers of "Trial and Error"—which I am delighted to say is back on our screens tonight and tomorrow night—did detailed research into the case, one of the conclusions, which was very significant, was that although Raymond Gilmour had been found guilty in Scotland, he would not have been found guilty in England. More significantly in terms of the new clause, if his case was being considered as a miscarriage of justice in England, he would have a far better chance of being out of gaol than he has in Scotland.

Someone cannot be any more guilty because the crime was committed in Scotland or because he or she lives in Scotland rather than across the border. I offer no criticism of the Secretary of State for Scotland in terms of the manner in which he has dealt with the case since the "Trial and Error" programme was shown. One of the anomalies in Scotland is what is considered to be new evidence; this is one of the areas that a Scottish commission would look at. The Secretary of State has accepted a fresh application for the prerogative of mercy when he could have exercised his judgment in another way.

I do not have a legal background and I have been very much assisted in this case by the hon. and learned Member for Fife, North-East (Mr. Campbell) who is, of course, an eminent Queen's counsel in Scotland and who has studied the case. He has made forceful comments about it in the House.

I believe that the new clause is reasonable and that it is absolutely unreasonable that we in Scotland shall have to wait several years for equivalent legislation. The emotional notion which we sometimes hear propounded, that Scottish justice is superior, is fast becoming diminished. In some respects, Scottish justice may be better, but we must accept that, in other respects, it is worse. One of the respects in which the Scottish legal system is worse is the way in which it deals with miscarriages of justice. The new clause is the sort of approach that the Government should take and they should not drag their heels for the length of time that it seems they shall.

Mr. Mullin

I said a moment ago in an intervention that it is a measure of the complacency in the Scottish Office that there is not a Minister from the Scottish Office present to hear the discussion about this Scottish measure. In my experience, it is very unusual, if not unique, for the House to be discussing a measure and for there not to be a Minister from the appropriate Department who can be bothered to show his face.

I raised this matter in the House as recently as Scottish questions three hours ago and I was extremely dissatisfied with the reply that I received from the Secretary of State. I was pleased that my hon. Friend the Member for Dumbarton (Mr. McFall) quoted a number of distinguished Scottish lawyers as being in favour of this sort of measure, because, in the past, there has been a certain smugness among Scottish lawyers. I had one or two coming up to me when we had trouble with the English legal system saying that, of course, such trouble could not occur in Scotland. I always suspected that it might, even though I do not have a very detailed knowledge of Scottish law.

People in the Scottish legal system have had a long time to adjust to the difficulties that have arisen as a result of miscarriages of justice. They have watched the great disasters that have occurred in the English legal system. They have had one or two lesser instances of their own—the Meehan case, for example—so no one can say that such troubles have not already been proven to happen in Scotland. They have seen a British Home Secretary come to the House of Commons and set up a royal commission. They have watched an English royal commission cover that ground for more then two years and they have seen it report back.

Only now have those in the Scottish legal system got around to setting up some little committee headed by Sir Stuart Sutherland to decide whether there is anything that they should be doing in Scotland. That is really not good enough. The fact that at the moment the Criminal Justice (Scotland) Bill is going through the House—which would provide a perfectly good opportunity, were the Scots so minded, to rectify that omission—makes it all the more inexcusable.

My interest in this matter arises from the fact that I receive quite a lot of letters from prisoners in Scottish gaols who allege that they are innocent. I have no way of deciding one way or the other, but it is obvious to me that there is a problem in Scotland. I am delighted to hear Scottish Members, who are more qualified than me, say that there is definitely a problem. Following the release of the Birmingham Six, hundreds of people wrote to me from gaols, not only in this country but around the world.

I compiled a dossier of the 40 or 50 most interesting British cases, which I presented to the relevant Secretaries of State. I presented letters to the Home Secretary personally, sent some to the Secretary of State for Northern Ireland, because a few cases arose there, and sent to the Scottish Office details of four or five cases that arose in Scotland.

I received a very courteous response from the Home Secretary. Indeed, over subsequent months I have had detailed responses to most of the cases that I raised. The Minister signs most of them and he knows that officials have gone to a lot of trouble to examine the cases included in my dossier, but I have yet to get anything substantial from the Scottish Office.

My letter to the Scottish office, raising the four cases of Thomas Campbell, Raymond Gilmour, Peter Hurtt and Joseph Steel, was sent on 15 April 1994. I heard only silence, so on 10 June I wrote again, saying: Please find enclosed a copy of the letter I sent to you on 15 April … I have no record of a reply and I would be grateful to hear from you on this matter. On 9 July, I received a letter, which was not very detailed, from Lord Fraser of Carmyllie. This year, after hearing nothing further, I wrote again on 29 March, saying: I would be grateful to know what progress has been made". I have not received a reply and I think that is pretty appalling. It is about time that the Scottish Office snapped out its complacency.

6.45 pm
Dr. Godman

May I point out to my hon. Friend the inconsistency of the conduct of Scottish Office Ministers? On Friday morning, the Under-Secretary of State, the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton), came to the Dispatch Box to give a couple of us Opposition Members an assurance that he would amend the Children (Scotland) Bill in the light of the Carers (Recognition and Services) Bill promoted by our hon. Friend the Member for Croydon, North-West (Mr. Wicks). Why cannot a similar assurance be given with regard to this new clause and the Criminal Justice (Scotland) Bill?

Mr. Mullin

That is a very good question. I think that the short answer is, because there is no Minister here to give that assurance. The Government could not if they wanted to. They are not even aware of the arguments that are taking place.

In addition to the four cases that I raised in my dossier, I have recently talked to people who represent Stuart Gair, a constituent of the right hon. Member for Stirling (Mr. Forsyth), a Minister in the Home Office. I am not touting for business; I do not want constituents of other hon.

Members coming to me and asking me to help spring them from gaol because they allege that they are there wrongly. I receive hundreds of letters, many of them desperate and some with a covering note saying such things as, "Please find enclosed 300 pages of background reading."

No one is looking forward more than I am to the commission being set up and to it being seen to work. I am even less qualified to assist Scottish prisoners than most. I believe that the Stuart Gair case has been the subject of a documentary on Scottish television, which certainly raised serious problems, but that there has been no sign of progress on that case either.

I do not allege that the Scottish system is any worse than the English system. I make no complaint about the fact that any legal system makes mistakes. What I have always complained about is the absence of a mechanism for putting them right. We are trying to do something about that in England, Wales and Northern Ireland. What is good enough for them in one form or another ought to be good enough for Scotland. I hope that some action will be taken shortly.

Mr. Nicholas Baker

New clause 7 would require the Secretary of State for Scotland to bring forward an order within one year of the passing of the Bill to make provisions for Scotland similar to those in part II of the Bill. That would require either establishing in Scotland a body similar to the commission and with similar powers or the extension of the ambit of the commission to cases tried in the Scottish courts. Such an order would require to be made by statutory instrument and be subject to affirmative resolution.

Mr. Michael

I should be grateful if, before going any further, the Minister would explain why he is responding to this debate. The new clause has been moved by a shadow Scottish Minister and surely a Scottish Minister should be responding. Neither a Minister from the Home Department nor I should be taking part.

Mr. Baker

The hon. Gentleman knows that the Home Office is responsible for the Bill and, in Committee, he may recall, Home Office Ministers dealt with it. However he may dislike it, that is the position.

I suggest that the right hon. Member for Berwick-upon-Tweed (Mr. Beith) is right. The new clause is not the way in which to legislate for Scotland. If I were a Scottish Member—it is extremely dangerous for any English man to mention a word on a Scottish subject—I think that I would complain very strongly about such a matter being put forward in this way. Having said that, of course I understand the frustration mentioned by the hon. Member for Dumbarton (Mr. McFall), which has been echoed by the hon. Member for Paisley, South (Mr. McMaster) and others in this debate. They want something done and I quite understand that.

I cannot agree that consultation is wrong. The Secretary of State for Scotland issued a discussion paper in February 1994, which was similar to those issued by my right hon. and learned Friends the Secretaries of State for the Home Department and for Northern Ireland, seeking views on what the options should be for change. The fact is that the responses to that paper, unlike the papers in the rest of the United Kingdom, revealed no widespread support for change. In the face of such a result, a Government would deserve criticism if they were to forge ahead and try to impose any solution. One clear message emerged—that there should be further consideration of those difficult questions for Scotland.

As a result, on 10 November my right hon. Friend the Secretary of State for Scotland announced the appointment and membership of the Sutherland committee to consider the issues in greater detail. The committee is expected to report next year. Hon. Members will know that a similar amendment was debated only yesterday, and I know that my right hon. and hon. Friends in the Scottish Office understand the urgency that some Members feel, although those people must recognise that there are many other views on the matter as well as theirs.

In the light of what I have said, I hope that the House will understand why I cannot support the new clause. Were I to do so, that would certainly not be in the interests of Scotland.

I fully appreciate the thinking behind amendment No. 42, which was tabled by the hon. Member for Upper Bann (Mr. Trimble), and before introducing the Bill we carefully considered the necessity of legislating to give the commission access to material that might be held by Scottish public bodies. However, our discussions and consultations had some effect on our decision, and we saw no need to extend the commission's clause 16 powers.

We believe that it would be rare indeed for material relevant to the commission's activities to be held solely by a public body in Scotland and not to be available from another source, or for the commission to be denied ready access to such material if it were found.

Normal practice—I know that the hon. Member for Upper Bann does not like normal practice, but it works, and in that respect it works well—is that where material relating to an offence in England, Wales or Northern Ireland is found, it is passed to the appropriate authority. I hope that, in view of what I have said, hon. Members will not press the new clause further.

Mr. Mullin

I quite understand that the Minister might not want to accept the new clause tonight, but perhaps he will consider introducing a suitable measure in the House of Lords. Failing that, there may still be time to put something in the Criminal Justice (Scotland) Bill, if that is the appropriate way to go about it.

Mr. Baker

The proper thing for me to do is to refer the debate to my friends and colleagues in the Scottish Office, who will understand the urgency that many hon. Members have expressed. That will form part of the consultation that is currently taking place.

Mr. McFall

We have had a worthwhile debate. As other hon. Members have said, and as the Minister has realised, it was born out of frustration. The Minister's response reveals that there has been a certain smugness in the Scottish legal establishment. When the issue of miscarriages of justice was at its height in England and Wales, people in the Scottish establishment felt that such things would not happen in Scotland.

Such things might happen in Scotland, and some extremely senior legal people there would tell us that it has already happened. When Lord Ross, the Lord Justice-Clerk, who is a member of the Sutherland committee, said that a body should be set up fairly quickly, we realised the urgency required. But the Government's definition of urgency is puzzling. It seems to mean that they set up a committee that will report in two years' time. That is not urgency, and the Opposition know it.

We have not had a full debate on the subject tonight simply because, with due respect to the Under-Secretary of State for the Home Department, who is here, no Scottish Minister has turned up. That is scandalous. It shows the apathy of the Scottish Office that it did not see fit to send one Minister to the Government Front Bench even to listen to the debate. I ask the Home Office Minister to take back to the Scottish Office the message that the Opposition are willing and ready to consult on the issue. We see it not as a party political issue but as one that attacks the body politic of the legal system in Scotland—one that, if left long enough, could be cancerous. We do not want that situation to prevail—

Dr. Godman

If we are fair-minded, we must admit that the smugness to which my hon. Friends the Members for Dumbarton (Mr. McFall) and for Sunderland, South (Mr. Mullin) referred is less noticeable than it was. Moreover, there are a few radical minds among the members of the Law Society of Scotland who would like the changes to be made.

Mr. McFall

Yes. I am talking about the smugness in the Scottish Office, although the legal fraternity has also been subject to a certain smugness. But there are many senior people in the law in Scotland to whom that comment does not apply. A few weeks ago, I spoke to several judges who realised the urgency of the situation. An eminent Queen's counsel, Gordon Jackson, has written an article saying that something needs to be done, and many people recognise that fact.

My main attack is on the smugness of the Government. We have had no real debate tonight because the Scottish Office has not thought fit to come here and discuss the issue. My new clause was tabled to tease out the Government's thinking and to offer the services of the Opposition to find a solution. The Government have not responded, but when people outside read Hansard they will realise the Opposition's good intentions and the Government's apathy. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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