Criminal Evidence (Northern Ireland) Order 1988

HL Deb 10 November 1988 vol 501 cc774-804

5.54 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 20th October be approved.

The noble Lord said: My Lords, the issue before us this evening which is at the heart of the subject of this draft order is one which has over many years raised deep emotions and led to strong arguments within the legal profession. This evening I shall try, with the assistance of all of your Lordships who will be contributing to this debate, as well as my noble and learned friend, to put the issue into perspective as well as to explain the reasons the Government believe that it is right to move now to allow courts and juries in Northern Ireland in certain carefully defined circumstances to draw such inferences as would be proper from an accused's silence under police questioning or in court.

Over a considerable period of time the Government have viewed with growing concern the way in which hardened, professional criminals in Northern Ireland, including terrorists and racketeers, have sheltered behind the protection provided for them by the law of evidence in criminal cases. This prevents inferences to be drawn from the fact that, when confronted with an accusation of complicity in serious crime, such lawbreakers choose to remain silent often in circumstances where innocent persons might reasonably have been expected to protest their innocence and draw attention to facts which would establish it.

Last year my right honourable friend put in hand within his department a confidential review of the law of evidence in Northern Ireland and the way it was being abused to thwart justice. The evidence of the need for change was and is impressive. The police and the prosecuting authorities confirmed that very many people whom they have good reason to believe are implicated in serious crimes have easy access to high-quality legal advice, are adept at resisting police questioning and have the protection of their own silence reinforced by the silence of witnesses brought about through fear. As my right honourable friend disclosed in another place on Tuesday of this week, the Royal Ulster Constabulary tell us that just under half of all those detained for questioning in connection with serious crimes in Northern Ireland refuse to answer any substantive questions at all.

The Government reviewed the arguments for and against change set out by a number of respected bodies and distinguished legal figures. Central to the Government's concerns were the powerful arguments in favour of change deployed by the Criminal Law Revision Committee in its eleventh report published in 1972. That was a very distinguished committee indeed, which as your Lordships will be aware, was chaired by the noble and learned Lord, Lord Edmund-Davies, and included among others Lord Justice Lawton, the late Professor Rupert Cross and Professor Glanville Williams. Its fundamental precept was that since the object of a criminal trial should be to find out if an accused is guilty, ideally all evidence should be admissible which is relevant. Thus its recommendations were aimed at reducing the gap between the amount of relevant evidence which could be given and the amount which is in fact given. These included provisions to abolish certain privileges of refusing to answer questions and provisions to discourage an accused from refraining from giving evidence if, a prima facie case has been made out against him.

It is the Government's view that the CLRC's arguments and recommendations have much greater force and are even more relevant today than they were in 1972. The Government, on the other hand, are not persuaded by the arguments against change which a majority of the Royal Commission on Criminal Procedure deployed in its report in 1981. Its conclusion that only a very small proportion of suspects remained silent in the face of police questioning was based on a fairly limited research confined to just four police stations and that conclusion is certainly not the case now so far as concerns organised serious crime in Northern Ireland let alone England or Wales.

During its review of these matters the Government were made aware of the law on evidence in the Republic of Ireland, where Sections 18 and 19 of the Irish Criminal Justice Act 1984 permit the courts to draw adverse inferences in certain specified circumstances from the fact that an accused had remained silent when questioned by the police. Whether or not those provisions have subsequently been applied is a matter for the Irish courts, but the important and more relevant fact for the Government was that the Irish Parliament had recognised the need for change in the law of evidence in 1984 and provisions permitting the courts, where they so choose, to draw inferences in certain circumstances are now on the Irish statute book.

The Government concluded their review by deciding to propose to Parliament measures adopting two provisions recommended by the CLRC and two provisions having the same effect as those in the Irish legislation. Those having the same effect as the CLRC recommendations are Articles 3 and 4 in the draft order which I shall shortly describe in more detail, and those having the same effect as Sections 18 and 19 of the Irish Criminal Justice Act 1984 are Articles 5 and 6 qualified by Article 2(4) and 2(5). Article 1 brings Articles 2 and 4 into operation on the seventh day after the order is made. The other provisions, which deal with silence in the face of police questioning, do not come into operation until the expiration of one month from the day on which the order is made. This delay is to ensure that police instructions—including a new form of caution to which I shall return later—can be implemented so that suspects will be properly warned of the implications of their failure to explain material facts when questioned.

Article 2 explains the interpretation of expressions used in the order and sets out savings concerning the operation of other statutory provisions and the powers of the courts. I draw your Lordships' attention to the importance of Article 2(4) and (5) which have the effect of making 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.

Article 3 has the same effect as draft clause 1 of the CLRC's recommendations dealing with what we call the ambush defence. It provides that a court or jury may draw such inferences as are proper from the fact that an accused relied in his defence on some fact which he failed to mention to the police when questioned or charged. This failure may be treated as corroboration of the evidence against him.

Article 4, which has the same effect as draft Clause 5 of the CLRC's recommendations, provides that 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; and that if he then 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.

Article 5, which qualified by Article 2(4) and (5) has the same effect as Section 18 of the 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, which again qualified as in Article 5 has the same effect as Section 19 of the Irish legislation, 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 the offence was committed.

Those noble Lords who have seen draft Clause 5 in the CLRC's report and who have compared it with Article 4 in the draft order will have noted that the draftsman who drafted the order has chosen at Article 4(1)(a) a more general formulation than that adopted by the CLRC. It ensures that the article will not apply in those cases where the accused's guilt is not in issue. But as the remaining provisions of Article 4 indicate, it does not displace the normal position that the accused may submit that there is no case to answer, and no question of his giving evidence arises at that stage of the proceedings.

Against the background of a sustained and systematic attack on the rule of law and on our democratic institutions, the Government decided after careful consideration that they must act promptly to restore the balance of justice in Northern Ireland. On an issue which has been debated exhaustively over the past 16 years and on which the legal profession will remain deeply divided, the Government decided that further formal consultation would not produce a consensus for change and proceeded forthwith to lay this draft order for approval by Parliament. My right honourable friend the Home Secretary also announced on 20th October his intention to bring forward legislation on this subject for England and Wales at the earliest opportunity.

The Government recognise the limitations of the Order in Council procedure, but in this case it is the appropriate instrument since much of the general criminal law in Northern Ireland is in legislation distinct from that of England and Wales and is defined as a reserved matter in Schedule 3 to the Northern Ireland Constitution Act 1973. Therefore this procedure applies in the absence of devolution. In recognition of the dissatisfaction with this procedure expressed by some honourable Members in another place, my right honourable friend offered to sit down with the elected representatives of Northern Ireland and others to see how the handling of Northern Ireland legislation can be improved until acceptable proposals for devolution are forthcoming from the representatives of both sides of the community in Northern Ireland. But for the present this is the procedure provided for in statute.

The Government are aware that effective safeguards are necessary to protect the rights of persons detained in custody and to prevent the abuse of police powers. For those arrested under the terrorism provisions in Northern Ireland such safegaurds are already in place in the provisions of Part II of the Northern Ireland (Emergency Provisions) Act 1987. The police are obliged to tell a person of his right to have someone informed that he has been detained and where he is being held and of his right to consult a solicitor. In certain circumstances—which are understandable in some cases of terrorism—and only on the authority of a senior officer, access to a solicitor can be delayed for up to 48 hours but must then be granted. I hope that your Lordships will understand that provision. However, for the general criminal law, similar safeguards which are already available in England and Wales will be provided for in the draft Police and Criminal Evidence (Northern Ireland) Order, a proposal for which has been out for consultation during the autumn.

The draft codes of practice associated with the draft order will provide that a policeman will be obliged to inform a person of his rights while detained for questioning. If the draft order we are debating this evening is approved by Parliament, the codes will also contain a new form of caution or warning which the police must follow when questioning suspects.

As your Lordships will know, in England and Wales the form of caution to be administered by the police before questioning or charging a suspect was a matter for the judges until, under the Police and Criminal Evidence Act 1984, it was provided for in a code of practice. Pending parliamentary approval of the forthcoming Police and Criminal Evidence Order for Northern Ireland, the Judges' Rules still apply there; and at the request of the Government the Lord Chief Justice and the judiciary of Northern Ireland are currently considering the appropriate procedures, including cautions, that would have to be followed by the police when questioning suspects if Parliament approves this draft order. Those recommended procedures would either be issued shortly to the RUC as an amended version of the present Judges' Rules or an administrative guidance.

I ask those noble Lords, or people anywhere, who say that these proposals remove a cornerstone of our traditional liberties to retain a sense of proportion. The measures we propose this evening do not reverse the burden of proof. The burden of establishing the guilt of the accused beyond reasonable doubt on the evidence presented remains, and will always remain, on the prosecution. The right of a suspect to remain silent will not be removed. The proposals do no more than allow such inferences as are proper to be drawn from an accused's silence in the face of other substantive evidence linking him to an offence. As the CLRC said: Failure to give evidence may be of little or no significance if there is no case against an accused or a weak one. But the stronger the case is, the more significant will be his failure to give evidence".

The Government recognise that these measures on their own are not a solution to the problem posed by organised serious crime in Northern Ireland. But there is no doubt that they will assist the police and the prosecuting authorities in the fight against such crime by planting in the minds of law-breakers doubts as to whether their silence will protect them from justice in the future.

In asking your Lordships to approve the draft order before us this evening, I should like to conclude by commending the words used by the Lord Chief Justice, Lord Lane, in the Court of Appeal in England earlier this year when commenting on the use of what we call the ambush defence. He said: The balance of fairness between prosecution and defence cannot be maintained unless proper comment is permitted on the defendant's silence in such circumstances. It is high time that such comment should be permitted".

That is as much as I wish to quote from the Lord Chief Justice's comments in regard to that case in the Court of Appeal earlier this year. I believe that that is a suitable conclusion to my remarks in setting forward the proposals in the order which is before the House tonight. I commend it to your Lordships.

Moved, That the draft order laid before the House on 20th October be approved.—(Lord LyeII.)

6.12 p.m.

Lord Prys-Davies

My Lords, I thank the noble Lord, Lord Lyell, for his full explanation of the terms of this important but difficult order. Perhaps I may say at the outset that we readily recognise the great difficulties facing the Government and their Ministers in Northern Ireland and the difficulties which face the police in the Province. We understand their sense of frustration as the emergency in the Province appears to be unending in the foreseeable future, or at all.

However, we regret that the Government have been manoeuvred into introducing this order which weakens and dilutes the right of a suspected person to remain silent. That is a right which has been a significant principle of English criminal law for about 300 years. We are not saying that the right is being removed; we are saying that it is weakened by the order.

In fairness, the Minister has acknowledged in his opening speech that the Government are aware of the unease which exists about the order—at least, I believe that there is that acknowledgment in his remarks. I should like to think that the fact that the noble and learned Lord, Lord Hailsham, is taking part in the debate this evening is some evidence—indeed, I am sure it is—that he is aware, and perhaps more than aware, of the importance of the order.

I should also like to say that we are concerned about the fact that the order has been introduced on 24 hours' notice. I believe that that concern is shared by many Members of your Lordships' House. Those who were present in the House last week will recall how my noble friend Lord Blease protested that the housing order was introduced at short notice. One begins to wonder whether these two orders represent the beginning of a period of almost unannounced legislation for the Province.

As this order erodes and weakens an important traditional principle of law, surely the House should have had ample opportunity to know that it was on its way to the Chamber. Therefore can the Minister explain to the House where the fault lies for this state of affairs?

I should like to mention many grounds of concern about the order—I put it no higher than that. I have listened carefully to the Minister, but he really has not explained why it is necessary to change the law in Northern Ireland before the Home Office has received the report of the working group of officials which was set up earlier this year by that department. It was set up to consider all relevant aspects of change in the law which is being made by the order which is before us this evening. I ask: why the haste? Why the hurry?

On 18th May last the Home Secretary said that more careful work had to be undertaken before the Government could bring forward with confidence—I underline the words "with confidence"—a specific proposal for legislation in this area. Therefore as England and Wales are not to be burdened with speedy legislation in this difficult area, and possibly imperfect legislation, why is it necessary that legislation on such an important subject should be home and dry in Northern Ireland before the working group reports in a few months' time? It is not the case that the report of the working group is not expected for two or three years; it is expected early in the new year.

The Government have said, and indeed I think the Minister did also this evening, that the change must be introduced now in Northern Ireland. That is an assertion which we follow. However, can we have the Government's explanation for the hurry, bearing in mind that the working party will be reporting in a few months' time? Before I leave this issue, I should like to press the Minister for one assurance. If in the light of the working party's report, when it is produced, it is considered that some, or even all, of the provisions to be found in the order are ill-defined, or otherwise defective, can we have the Minister's firm assurance that the Government will promptly introduce amending legislation to put the order into proper shape or, if need be, to repeal it so that the law in Northern Ireland would mirror the provisions in England and Wales?

Again, notwithstanding what the noble Lord, Lord Lyell, has said, it is very much to be regretted that the changes are being made by the procedure of an Order in Council, rather than by primary legislation. Even if we accept that there may be justification for modifying the principle of the right to remain silent—at least in respect of some offences—even if we make that concession, then the House should have the opportunity of testing the legislation. There is really only one way of doing so and that is in Committee. One wants an opportunity to test the meaning of words and phrases and to test whether the provisions of some of the articles have been too widely drawn.

The order is concerned not just with the inferences to be drawn from the accused's silence in the courtroom after he has received legal advice, or in the police station; it reaches further back. It reaches a suspect's failure to answer a constable's questions in the street.

I should like to refer briefly to Article 3(1). Has not the net been cast too widely? It appears to me, and I am no expert on the criminal law, to have been widely drawn. Such inferences as appear proper may be drawn against an accused if he: at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom an offence has been committed, failed to mention any fact relied on in his defence in those proceedings"'. As I read the article, the provisions will apply even before the police have evidence that an offence has been committed by anyone. If a constable sees smoke, he will assume that there is a fire. It may be a non-existent fire. Is that fair?

Again, it will be lawful to draw inferences against the accused for a failure to mention any fact relied on in his defence even if the fact is peripheral and almost inconsequential. Is not that going too far? As I have said, to a layman it appears that Article 3(1) has been widely drawn. It is not immediately apparent why it is necessary to introduce Articles 5 and 6. The Minister has told us that they are similar to two clauses to be found in the Republic's criminal law. Is it not true that the clauses in the Irish Criminal Justice Act have not been invoked by the courts?

There is one point on the substance of the order upon which I should be grateful for clarification. How will the order affect the position of a person who, for a reason best known to himself or herself, tells the constable in the street or in the police station that he or she wants to consult a solicitor before answering the constable's question? Even innocent persons are worried about their protection in certain circumstances. People may fear that a constable is going over the top and they therefore will not answer a question until they have received a solicitor's advice. Could an adverse inference be drawn if as I walk along one of the streets of Belfast I refuse to answer a constable's question until I have consulted a solicitor and I give him that explanation for my silence? It is not clear how that position lines up with the provisions of the order.

I understand that it is the Government's case that the proposed derogation from the traditional safeguard of the criminal law will lead to more convictions and help to reduce serious crime, in particular, acts of violence committed by the Provisional IRA and the Loyalist paramilitaries. I accept that it may well lead to the conviction of some guilty persons who now go free; but some innocent people may be convicted.

I am not sure that the order will be as powerful a weapon against the hardened terrorist as the Government believe. I have been told by a friend who practises at the criminal Bar that henceforth, whatever may have been the position in the past, a hardened criminal will have worked out his alibi beforehand; and the person who may well be at risk is the young innocent alleged offender. Might not the order be counter-productive? Will it not (or may it not?) create or deepen the sense of grievance felt by some Nationalist communities in the Province? Will it not be a ready target for the Provisional IRA? Will it not represent it to be an oppressive measure to attract sympathy and support at home and abroad? If that were to happen, will the Minister explain what then will have been achieved by the order?

We on these Benches are unable to support the order because so many questions remain unanswered and we have reservations; but in accordance with the convention, we shall not seek to divide the House.

6.26 p.m.

Lord Hylton

My Lords, I am sure that Members in all parts of the House are grateful to the Minister for explaining the contents of the order. I hope that I manage somehow to retain my sense of perspective and proportion. I endorse the opening remarks of the noble Lord, Lord Prys-Davies, who said that we all understand and have sympathy for the Government in the current difficulties that they have over law enforcement in Northern Ireland.

Having said that, I regret the fact that the order breaches a convention that has held for many generations. Parliament is being treated with something verging on contempt. The order was published on 20th October in its final, unamendable, form. Parts of it will become effective one week and other parts one month after it is made. When it passed through the other place, it received a mere two-and-three-quarter hours of debate. Consideration in your Lordships' House has been brought forward by four days. I regret that no one commented upon or objected when that was announced. Why is there all the rush? Why is the measure suddenly necessary after the emergency has continued in Northern Ireland for some 18 years and we have had nine-and-a-half years of Conservative government?

If the order is aimed at terrorism and racketeering by hardened criminals, why does it include all offences from petty shoplifting and traffic offences right the way on upwards? I have to ask again: why was there no consultation period although in the case of the housing order which was mentioned earlier there was a normal and lengthy consultation period? Surely in this case it would have been right to seek the considered opinion of the legal professions in Northern Ireland on the text. Why was the Standing Advisory Commission on Human Rights not consulted in advance?

The Minister mentioned the legal position in the Republic of Ireland. Why does the order go further than that on two major counts? I should perhaps explain that the Irish legislation creates presumptions only where suspects refuse to explain stains or substances on their clothes or their whereabouts at particular times. It has in any case been said that the Irish law of 1984 has seldom been invoked against terrorists and racketeers. Mr. Mallon, the honourable Member for Newry and Armagh, even declared in the debate in the other place that this legislation had never been invoked by an Irish court and no one contradicted him. I challenge the Government to do so now if they wish.

This order applies to the potentially innocent as well as to the potentially guilty. It so happens that I have visited men in prison both in England and Northern Ireland who considered themselves innocent of crimes for which they were convicted. They believed, sometimes after many years in prison, that they were the victims of miscarriages of justice. This order increases that risk and therefore should have been presented as a Bill so that it could have been properly scrutinised, clause by clause and line by line, in both Houses.

We are told that there will have to be a Bill for England and Wales. Why therefore is Northern Ireland treated in this unfortunate way? As an Englishman I object to the measure being used as a paving stone to diminish my long established liberty. Will the Government give an undertaking that the Bill for England and Wales will also cover Northern Ireland and thereby replace this order, if it should be approved? What I ask now is somewhat parallel to the assurance that was asked for by the noble Lord, Lord Prys-Davies.

The order might be acceptable if certain conditions obtained but, alas, I do not think that they do. In 1981 the Royal Commission on Criminal Procedure in England drew attention to the lack of supervision and control over police interrogation. In Northern Ireland the Bennett Committee recommended measures in 1977 to prevent brutal and degrading treatment for suspects under arrest and in custody. If since then Her Majesty's Government had totally stamped out such maltreatment, this order might be acceptable. However, alas, police surgeons and even the High Court in Northern Ireland have this year recognised that such is not yet the case. If suspects were always questioned in the presence of a magistrate, as I understand is the practice in Scotland and France, in short, if we had in Northern Ireland a proper inquisitorial system, we could perhaps agree the order. Again, if suspects had an automatic right to legal advice before or during questioning, the order might be acceptable. In fact we know that for scheduled offences in Northern Ireland access to a solicitor may be refused for 48 hours. The Committee on the Administration of Justice has produced figures showing that in 40 per cent. of such cases access was delayed.

We also know that in Northern Ireland there is no system of duty solicitors available throughout the 24 hours as exists in England. Neither are there lay visitors at police stations to oversee the well-being of arrested persons. Will Her Majesty's Government extend these provisions to Northern Ireland?

It is a long-established fact of life that there are no simple solutions to be had in Northern Ireland. There is little prospect of a military or police victory. There is therefore little chance of overcoming terrorism through the administration of justice. Yet in spite of this, the Government come forward with a trio of measures: this order, the denial of radio and TV appearances for certain parties and organisations and the proposed declaration at elections concerning the use of violence. At least in the last instance there has been a long consultation period. Otherwise I have to say with regret that these are cosmetic moves which may achieve little.

Her Majesty's Government would do better to devote their considerable energies to gathering usable information, to stopping rackets where they can and to making economic and social improvements, especially fair employment. What is needed above all and at all levels is confidence-building. That is why I welcome the recent White Paper on integrated education and the proposed extension of police and public liaison committees. I have given reasons why this order should be rejected. I only regret that the conventions of your Lordships' House apparently prevent us dividing upon it.

6.35 p.m.

Lord Colnbrook

My Lords, the noble Lord, Lord Hylton, and the noble Lord, Lord Prys-Davies, before him referred to the method of legislating for Northern Ireland. They spoke about the differences between the law in Great Britain and Northern Ireland and the Republic and referred to the problems which they acknowledge exist in Northern Ireland. Perhaps I could say that I agree with them both about the method of legislating. It is not satisfactory, as we all recognise. That is why I was particularly pleased when my right honourable friend the Secretary of State in another place two days ago made the firm offer of discussions, primarily no doubt with representatives of Northern Ireland but also with anybody who would care to join in, about seeking an improvement. I think this is a wise move on his part and I hope very much that the offer will be taken up. We all wish to see an improved method of providing law in Northern Ireland.

On comparisons of the law, as your Lordships know, I am no lawyer so I shall not make any comment on that but leave it to my noble and learned friend in front of me who will no doubt do so. Perhaps I may claim to speak with some knowledge of the great problems in Northern Ireland facing my right honourable friend the Secretary of State, my noble friend the Minister, the Royal Ulster Constabulary and everybody who lives in the Province. Their problems are very different from those in Great Britain.

In Great Britain, for example, persons accused of crimes, generally speaking, are accused singly or possibly in small groups. As a rule I think it is true that the crimes they commit are committed for personal reasons—personal gain, revenge or whatever it may be. In Northern Ireland what is being attempted by the terrorists and persons accused of offences of a terrorist nature is the overthrow by force of the Government, of the whole machinery of Government at all levels and its replacement by themselves, not only in Northern Ireland but in the Republic of Ireland also. Their spokesman, Mr. Adams, made a great speech nine years ago, of which I have a copy. In it he declared that the aim of his organisation was the overthrow of both governments by force.

These people are prepared to use any means to achieve their aims. They are all unfortunately only too familiar with the desperately long list of atrocities committed week after week in Northern Ireland—the murders, the bombings, the shootings, the maimings of people, many of them wholly innocent and totally unconnected with the government which the terrorists seek to overthrow. Only this morning we read in the newspapers of the most recent bombing of a housing estate in Londonderry yesterday full of women and little children. It is very easy for us who live our lives in Great Britain to imagine that the maintenance of law, order and peace is much the same in Belfast as it is in Birmingham. However it is not. It is very different and it requires us to think very carefully about how best to handle it.

What is proposed here, it seems to me, is not in the least draconian hut, on the contrary, very modest. It is in line with common sense. I am not a judge; I am not even a magistrate. I have never sat on a jury but I think anyone charged with the duty of deciding the guilt or innocence of an accused person is bound to take into account everything connected with the case. That includes the words spoken or written in evidence of course. But when a witness's evidence is tested by examination and cross-examination the demeanour of the witness and the way in which he or she answers the questions or does not answer the questions are relevant.

At present, in theory, as I understand it, the judge, the magistrate or the jury are not entitled to take into consideration the fact that the accused will not answer questions. If he refuses to answer questions in court, they are bound to notice that because they were there and they saw it. For the life of me, I cannot see why they should not take that into account. Of course it can never be conclusive—indeed, the order specifically states that it cannot be conclusive—but it is one pointer that contributes to the whole picture they are considering.

I make one final point. It is quite clear that the terrorist organisations regard this facet of our law as being of the greatest value in helping their members who have committed horrific crimes to escape the consequences.

I, and I expect many other noble Lords, have seen the printed instructions, not to innocent people but to people who are setting out to shoot someone or to plant a bomb. Those instructions state what those people should do if and when they are caught. The instructions are headed: Whatever you say, say nothing". The instructions contain detailed advice about how terrorists should conduct themselves when questioned. They know, and continually stress, that the refusal to answer questions is of enormous help to them because the courts can take no notice of it.

Those charged with the duty of preserving peace and quiet in Northern Ireland have a difficult enough task. This proposal will not end the troubles, but it will help, as my noble friend the Minister said, by sowing doubts in the minds of some terrorists as regards whether their silence will protect them. If that means that next week even one person is alive who would otherwise have been shot or blown to pieces, this must be something we all desire. I urge your Lordships to support this order.

6.42 p.m.

Lord Moran

My Lords, I wish to say a few brief words about two aspects of this matter: first, the way in which this legislation is being introduced for Northern Ireland; and, secondly, the substance of the order. On the first point, two days ago there were widespread protests in another place, from many parts of that House, about the introduction of this change by Order in Council rather than by a Bill. I think those protests were justified, despite the technical reasons which the Minister mentioned in his speech. I was very interested to hear what the noble Lord, Lord Colnbrook, who speaks with great authority on these matters, has just had to say on this.

I have only sat for four years in this House, but I have been impressed by the effectiveness of the legislative process in Parliament. During the debate two days ago on the introduction of charges for eye tests, the noble Lord the Leader of the House and others pointed out that Lords' amendments are often accepted. It has been my experience that the Government do listen to constructive criticisms, that sensible amendments, supported by cogent arguments, are often accepted in substance and that Bills are improved. Why then should we reserve the privilege of using their system for England and Wales and deny it to Northern Ireland?

For by adopting this procedure, the Government are denying us the opportunity of proposing any amendments. There will be no Committee stage and no Report stage. We are treating Northern Ireland in a way which we do not treat England and Wales—like a remote colony instead of what it is, part of the United Kingdom. That is surely wrong.

Moreover, in this case the change is not to be restricted to Northern Ireland. In winding up the debate in another place the Solicitor-General said: This Order is part of a reaction to serious crime generally… in England and Wales and Northern Ireland."—[Official Report, Commons, 8/11/88; col. 219.] So, why could there not be a normal Bill covering all three parts of the United Kingdom?

I cannot help thinking that the Government are proceeding in this way because they cling to what I believe is the mirage of devolution, whereas the logical, sensible thing to do would be to treat Northern Ireland as Wales is treated—as a full part of the United Kingdom entitled to the same rights as any other part. Those rights should not exclude the ability to vote for the major national political parties.

I too, however, was encouraged to see that in response to this criticism the Secretary of State for Northern Ireland said that he would be willing to sit down with Members of another place, and discuss the ways in which we proceed with legislation".—[Official Report, Commons, 8/11/88; col. 182.] If that happens may I ask the Minister for an assurance that the needs of this House will be considered also, and that we too may have an opportunity of joining in the discussion.

I now turn to the question of the substance of the order. Here I fully support the Government. To me as a layman the case appears to be clear enough. It is surely based, as the noble Lord, Lord Colnbrook, said, on common sense. Those of us who served in the last war were advised, if captured, to give our names and numbers but nothing else whatever. Terrorists and criminals are now adopting the same tactic and if, as the Minister tells us, nearly half those questioned about serious crimes in Northern Ireland choose to say nothing, surely something needs to be done.

A court must be able to draw an appropriate inference, being guided on that by the judge. A case still, as I understand it, needs to be proved beyond reasonable doubt, and Article (4) makes it clear that silence by itself will not be enough to convict. I am impressed by the remarks of the Lord Chief Justice that were quoted by the Minister. The balance does surely need to be corrected, so that guilty persons cannot escape by ingenuity. I think therefore that the Government are entirely right to introduce this change.

6.46 p.m.

Lord Hailsham of Saint Marylebone

My Lords, I was very touched when the noble Lord, Lord Prys-Davies, made his reference to me at the outset of his remarks. I do not know whether or to what extent he will approve of what I have to say, but I shall preface my remarks by saying that I believe as strongly as ever in the importance both of the burden of proof and of the standard of proof. I echo exactly what the noble Lord, Lord Moran, has just said. That is to say that a case must be proved beyond reasonable doubt against any accused, whatever he is accused of; whether it is going against traffic lights or murdering Lord Hailsham of Saint Marylebone. The case must be proved beyond reasonable doubt.

But having said that, I must add that the creaking ox wagon with its artificial and specialised rules of evidence and procedure which constitutes English criminal law—I say English criminal law because I am not a Scots lawyer—is something which should have advanced rather more rapidly since Jeremy Bentham than it has been able to do. The Northern Ireland system of criminal law basically corresponds to the English model.

The chief enemies of advance have, I am sorry to say, been very largely members of my own profession. My mind goes back to the terrible debate in which almost every speech which has been made this evening could have been made. That debate concerned majority verdicts in juries. I had promises from eight or nine—I forget the exact number—members of my own profession on my own side of the House. We were then in Opposition in another place. Those members told me that they would back what the then Home Secretary, Roy Jenkins, was saying. He is now the noble Lord, Lord Jenkins of Hillhead.

I told Roy Jenkins that I would back him to the end. I did, but every one of those who had promised me support ratted. I told them when they ratted that the first verdict would be a verdict of acquittal. Not only was the first verdict a verdict of acquittal, but in the case of Peter Haines he would have had to stand his trial a second time if it had not been for a majority verdict.

The truth about this ghastly business is that there are two theories of English criminal law. That was dinned into me by my father after he had been Attorney-General. One of the theories is what I might call the foxhunting theory. According to that theory, it does not matter what one does to the criminal provided he is properly hunted by 12 selected hounds presided over by a huntsman in a pink coat blowing a horn of a particular make. The criminal must not be chopped in cover. As long as the thing goes according to Cocker, or whatever the right term is, and Facey Rumford is in charge of his hounds it does not matter what one does to the criminal.

I take a totally different view. I take the Jeremy Bentham view of the criminal law. The purpose of criminal law anywhere is to convict the guilty and to acquit the innocent. I wish I could drum it into the heads of my colleagues in the legal profession that by ensuring the acquittal of a large number of guilty people one does not necessarily secure the acquittal of one innocent man by any rational system. I can name instances where time and again the artificiality of English criminal law and procedure has led to convictions of admittedly innocent people—for example, the case of Doherty, of Adolf Beck, and the case of Virag.

The essence of the matter is rationality. The two doctrines of English criminal law were well summed up in the battle between Blackstone and Jeremy Bentham. The Blackstonians were foxhunters to a man and Jeremy Bentham was the rationalist. I declare myself, for this purpose only, a Benthamite.

This is a very modest little measure, which I should have liked to have seen a great deal simpler. I should have liked to have seen it applied to the United Kingdom as a whole, but I exclude Scotland because I do not understand Scottish procedure. I should have liked to have seen it applied both to Northern Ireland and to England and Wales, and it ought to have been introduced about 25 or 30 years ago.

Why do I say that? First, my noble kinsman on the Cross Benches and the noble Lord, Lord Prys-Davies, thought that there was some sort of immemorial right—which is called the right of silence—which was being taken away by this measure. I must correct that impression. We are dealing with three related areas of English criminal law. The first is the treatment of a person under interrogation; the second is the admissibility of confessions; and the third is the right of the accused to give evidence.

In the sense of the last of those rights there has never been a right of silence. I shall tell your Lordships why. Until 1898—which is only about eight years before I was born—the accused was not allowed to give evidence. He was prohibited from doing so. I have no doubt that a great deal of injustice in the name of what is called fair play—which means foxhunting—resulted from his not being allowed to give evidence.

The rules introduced in the Act of 1898—which as I say is more or less my own lifespan plus eight years—still stand on the statute book. The rules provide that the prosecution may not comment upon the failure of the accused to give evidence, except…—and then follows a series of fox hunting rules. The judge may do so, and does so even now—and Lord Lane did so in the case which my noble friend on the Front Bench quoted. But the theory of the right of silence does not exist as regards the judge except in so far as it has been elaborated by the extraordinary complexity of the English legal mind.

In 1932, when I was a young man at the Bar before that right had been fully elaborated, there was a judge called Mr. Justice Swift. He was an amusing man with a strong Lancashire accent. If the accused did not give evidence he would say to the jury "You know, members of the jury, there's one man in this court who knows what 'appened. I don't know what 'appened, you don't know what 'appened. But there's one man who does know what 'appened. 'E 'asn't told us. I wonder why". That is what happened when I was a young man at the Bar. Of course he would not get by the Court of Appeal Criminal Division today with a summing-up like that.

Let us get down to brass tacks and say boldly and brutally, with the Edmund-Davies committee, that everything ought to be admissible which is capable of being logically probative and relevant with very few exceptions indeed. Among those things which ought to be admissible are silences and observations of any kind made in circumstances which are relevant to the issues of the trial.

Perhaps I may give some examples. I quite agree with my noble kinsman that there is no difference between terrorist offences and ordinary offences in this respect. Suppose a man is accused of incest with his daughter. The little girl is brought in and the outraged mother points to the man and says, "This is what she says you have done to her". If he tells lies, that can be given in evidence; he has chosen to break his silence. If he blushes, that can be given in evidence. If he shifts uneasily from foot to foot, hangs his head and turns away from his little daughter, that can be given in evidence and inferences can be drawn, and rightly. In those circumstances we trust the jury to come to the true conclusion. But if he says nothing, stands at attention and looks at the ceiling his silence cannot be used in evidence.

Suppose a man is found standing over the victim, who happens to be his worst enemy, with a smoking gun in his hand and a dead body in a geat pool of blood in front of him. That would ordinarily be considered a compelling case to allow a jury to convict. However, there may be an innocent explanation. It may be that he was trying to stop the man from committing suicide and took the gun away from him but it went off in the struggle. It may be that he was defending himself because he came in when the man was plotting some outrageous offence, he tried to take the gun away, succeeded and shot the man in self-defence. But it would be rather odd, would it not, if he did not say so when asked? It would be odd if he remained silent and said, "Prove your case against me", with the gun smoking and the pool of blood on the floor.

What do we mean when we talk about this centuries old right? The truth is that it was called a thieves' charter by Jeremy Bentham, and Jeremy Bentham was right. My noble kinsman has a perfectly good point when he asks the Government why the order should apply only to Northern Ireland. The truth is that it ought to have been introduced 25 years ago for everybody.There are only two good reasons for treating Northern Ireland separately. One is that which my noble friend on the Front Bench gave; namely, the difference in law—which is not entirely homogenised by the order—between us and the Republic of Ireland. The order brings the law on the north of the Border more or less in line with that of the Republic. That cannot be a bad thing when there is a land frontier.

As my noble friend behind me said it is true that there is a difference between Northern Ireland and England. The terrorist organisations have coached their members, who are organised not only in a conspiracy to murder but also in a conspiracy to commit high treason, in the best way to defeat the police. I believe therefore that there is a case, although it is not the case that I should have liked to have been making, for selecting Northern Ireland for this order on those two grounds.

I hope very much that the Home Secretary will shortly bring in a Bill which will enable us to examine the whole subject of the so-called right of silence in the light of logic and common sense. It ought to have been done long ago and I hope that he does it very soon. Then we can examine any differences between this rather more complicated order that I should like and the law as the Home Secretary introduces it and homogenise the two. In the meantime and on the merits of this case, we ought to do it and do it at once.

7 p.m.

Viscount Brookeborough

My Lords, it is a great honour but yet a daunting and almost impossible task to follow my noble and learned friend Lord Hailsham. There can be nothing left for me to say on the legal side. Thank goodness! I should like to say something about the practical problems as they occur in Northern Ireland. First, in general I should like to welcome this order and I thank my noble friend Lord Lyell for explaining it so clearly to a layman such as I am. I am sure it will help to improve the very difficult situation in Northern Ireland at present.

I realise that it is a basic principle of the British legal system that a suspect should have the right to refuse to answer questions or give an explanation for his or her behaviour. However, that principle has been systematically and with premeditation exploited to the limit by the terrorists in the Province. In support of that statement I should like to quote an extract from the 1987 report of the Chief Constable. At page 14 it states: Terrorists are well schooled in methods designed to impede investigation into their acts of violent criminality. They are educated to a high degree in the working of the legal system and use this knowledge to their advantage. Training in interrogation resistance, with lectures and practical demonstrations, is standard procedure to all so-called volunteers [of the terrorist organisation)". Noble Lords may well expect the Chief Constable of the RUC to say that in support of the argument for an order such as this one. However, I now quote from a proponent on the other side—An Phoblacht/Republican News of 7th July 1988. The headline reads: Interrogation—Whatever you say say nothing". The article continues: Interrogation is like walking a dangerous tightrope; the only safety net one has is to maintain absolute silence from the moment of arrest until the moment of release.

The most important right you have is the right of silence. It is the only guarantee you have of being released without charge". That is the teaching and it indicates the value of this criminal evidence order to our security forces which are defending democracy in the Province.

Perhaps I may now offer your Lordships a couple of examples out of many hundreds of cases in which suspects have exercised their rights to remain silent. Those examples make that right sound ridiculous. In a sectarian attack, a man was beaten to death by four others in a bar. Police arrived quickly on the scene and found bloodstains on two of the group. A witness confirmed that all four men had attacked the man, but the witness withdrew his statements because of threats. The suspects did not speak to the police, and on withdrawal of the evidence by the witness they were released without charge. In the second example, acting on information police approached a block of high-rise flats in order to carry out a search of a specific flat. A few yards from the flat in question they met five well-known terrorists coming from the direction of its open door. They stopped the men to question them. At that time a radio transmission was received from police on the ground that three firearms had been thrown from the window of the flat in question. The terrorists refused to speak when arrested and as none of them was a resident in that block of flats, charges did not succeed. Those examples show the ridiculous situation which at present exists in Northern Ireland.

Noble Lords may find it surprising that a suspect can sustain his silence during a period of seven days of interview. He may sit with his head between his knees or stare at the ceiling. Suspects have lain down under the interview table. The interviewer has then had to lie down beside him in order to conduct the interview. To attempt to move him or her onto a chair would constitute assault, and one remembers that there is closed-circuit TV in use. There was one occasion on which a suspect said only one thing in seven days—a few words; enough to ask for a glass of water.

I should like to return for a moment to the basic rights that people have under British law. What basic right did the terrorists give to the innocent people who were murdered and injured in Enniskillen on Remembrance Sunday last year? I knew many of them and their families and I am very glad that this year soldiers from the Fourth (County Fermanagh) Battalion of the Ulster Defence Regiment will be taking part in the Festival of Remembrance at the Royal Albert Hall. All of them, men and women, were present that day and for their actions after the explosion some of them received awards which varied from a Mention in Dispatches to an MBE. We are grateful to the people who saved the lives of so many who were injured on that day.

On that same day the terrorists had planted a second bomb, which failed to go off, at a second remembrance parade in Tullyhomman, only 20 miles from Enniskillen. What basic right did the terrorists give to the girl Gilliam Latimer who was on a school bus which was blown up Lisnaskea?

If those events seem far removed from this House, perhaps your Lordships will turn your thoughts to the soldiers and relatives of those soldiers in the 1st Battalion Light Infantry, who were murdered in Omagh when in a bus on their way back from leave. Those were soldiers of the Crown and, more than that, most of them came from England.

I put to your Lordships' House that had this order been in place during the past year or, as some previous speakers have suggested, for many years previously, the terrorists might never have carried out such murderous deeds for fear of conviction. In conclusion, I give my earnest support to this order.

7.7 p.m

Lord Harris of Greenwich

My Lords, I should like by way of preface to make two remarks. First I think that tonight we have had a typically engaging and robust speech, which we all enjoyed, from the noble and learned Lord, Lord Hailsham. It was a formidable piece of advocacy. I agreed with a great deal of what he said, although not in all respects. I shall come to those points in a moment.

By way of introduction, I should say I agreed with the remarks made by the noble Lord, Lord PrysDavies, at the beginning of his speech. I think that it is extremely unfortunate that we have had such very short notice of this debate and that we are having it in a Chamber which, admittedly, is rather fuller than I thought it might be at the end of a Session. Secondly, I must say that I do not like the Irish argument, if I may so describe it; namely, that if something is done in the Irish Republic, it follows that it is perfectly right, sensible and desirable to do the same thing in the United Kingdom. That was the argument used for the broadcasting ban, which I thought was a foolish decision, and everything that has happened since then has demonstrated how ill judged it was. We have also heard that argument repeated tonight.

Of course I understand that in debates within the island of Ireland it is a persuasive argument to say that we have done no more in the North than they already have in the Republic. And I also see that the argument could be put in the United States when we are under criticism. Nevertheless, I believe that these substantial powers which we are now debating, have to be justified in their own right.

I must make my position quite clear. I am sure that the majority of my noble friends oppose the ending of the so-called right of silence in criminal trials in the United Kingdom. No doubt some would do so more emphatically than others. But I have little doubt that a decisive majority would be against it.

However, I must confess that I am a heretic on this matter, as indeed was the noble and learned Lord, Lord Hailsham, on the issue of majority verdicts when he disagreed with the majority of his own party when he was Home Affairs spokesman of the Conservative Party in the House of Commons. I supported the view, when a Home Office Minister, that the prosecution and the judge should have the fight to comment on the decision of an accused person to remain silent when questioned by the police. Of course I certainly believed that such a change in our law should be most carefully considered to ensure that the accused had proper rights. I think it correct to say that with everything that has happened since then I have not changed my position in any way. I find it disagreeable in the extreme to take one view when one is a Minister and immediately one is in opposition to take suddenly exactly the contrary view.

Having said that, I must make it clear that if there was a vote tonight I would without question vote against the Government so far as this order is concerned. I should like to explain why that is so. First of' all, I think we all recognise—as I am sure, if I may say so, does the noble and learned Lord—the significance of the decision that we are being invited to take this evening. It represents a major change in our system of criminal justice in this country. It flies directly in the face of a majority recommendation of a Royal Commission and, as we all know, it is highly controversial, as the noble and learned Lord said, among members of his profession and no doubt among the wider public.

In such a situation—and in this I agree with what the noble Lord, Lord Moran, said—I believe that Parliament has a clear obligation to examine the issue in detail; to have a Bill which would have a Committee and Report stage in both Houses of Parliament, with the opportunity of having amendments tabled and, if necessary, voted upon. However, what have we been presented with tonight? We have not been presented with that. We have had an order debated in the last day or so in the House of Commons for a period of two hours and 47 minutes. In that debate virtually every speaker complained in the strongest terms about the way in which this matter had been handled by the Government, including a significant number of members of the Conservative Party—not wets, if I may say so, but some of the drier Members of the House of Commons.

The debate in the House of Commons, as unhappily is often the case with Northern Ireland orders, took place with little more than a score or so of MPs in the Chamber. A few moments later the Division Bells rang and, with the Government having the majority they have in the House of Commons, they of course got their way.

In this House tonight we have a Chamber that could hardly be described as packed. We are having this debate, as has been pointed out by a number of speakers, in a situation in which our conventions dictate that we do not vote against a government order of this kind. In short, that solitary two and three-quarter hours debate in the Commons is the only challenge that it has been possible to make to the Government's proposals. I believe that that is a deplorable abuse of the procedures of Parliament. It comes dangerously close to legislating by decree. I say this as someone who has had experience of dealing with highly controversial criminal justice matters both when personal assistant to my noble friend Lord Jenkins of Hillhead and a Home Office Minister for live years.

A few moments ago the noble and learned Lord reminded us of the issue of majority verdicts. If I may say so with both respect and affection for the noble and learned Lord, he was not a popular man among some of his parliamentary colleagues at that time, and that no doubt understates the case. He indicated to the Home Secretary that he would support him through thick and thin, and he certainly did so. He was opposed by the two former Law Officers on the committee and by a formidable number of his parliamentary colleagues when the Bi11 reached the Floor of the House of Commons for Report stage.

We were at that time opposed by the Criminal Bar Association and by a substantial number of national newspapers, including The Times, which indicated that by introducing majority verdicts we would be destroying fundamental civil liberties in our country. But the point of all this is that we had that debate in the House of Commons, we had the Standing Committee, we had the debate on Report, we had the debate on Third Reading and it was debated in this House as well. What I find objectionable about this procedure tonight is that we are having to take it or leave it, and so far as this House is concerned and its conventions we just have to leave it. I do not like that approach, and I think we are involved in making a serious error of judgment so far as this is concerned. And I repeat, I have made my view on the principle of the matter already wholly clear.

Why are we prepared to do it in this way? Of course a critic will say—and I do not associate myself with this view—"Well, it is only Northern Ireland, and so therefore it doesn't really count". That is a dangerous view, and I am afraid that we give some support to that view by behaving as we are in the process of doing. It may be said, "Well, here is a matter of great urgency. It involves terrorists". But with great respect I have heard former Ministers in the Northern Ireland Office and senior officers in the Royal Ulster Constabulary make their views known on this matter for the last five, six or seven years. Therefore the suggestion that we must legislate within a week, two weeks or three weeks in such a situation is frankly preposterous.

If full, normal parliamentary procedures had been involved a Bill giving the Government powers so far as Northern Ireland is concerned would probably have been on the statute book by Easter. At least I believe that in those circumstances there would have been a chance that it would have been rather better thought through than is the position we are facing this evening. For instance, I think it was the noble Lord, Lord Prys-Davies, who asked about the precise meaning of paragraph 3(1)(a) when he mentioned this use of the language, any fact relied on in his defence in those proceedings". He pointed out that in these circumstances negative inferences could be drawn from a defendant's refusal to make a statement to the police.

Then there is the expression "any fact". I wonder how much time a Standing Committee of the House of Commons would devote to an issue of that sort. There is a whole series of references in this order which one would want to have thoroughly debated, but of course we cannot debate these issues because we are precluded from doing so by the procedure under which we are operating.

There is also the question of the Home Office working party. What will happen if that working party makes recommendations significantly at variance with the contents of this order, as I suppose is likely? I hope I am going to get a direct answer from the noble Lord on this: are we then to have a second Northern Ireland order which might establish greater opportunities for a defendant than is the position under this order? What then about the people who have been convicted as a result of this order? Are they to have the opportunity of having their cases reconsidered? There are formidable problems associated with this approach.

Then there is another matter. What about the police disciplinary procedures affecting the Royal Ulster Constabulary? Are they to be changed? There has been criticism—in my view foolish criticism—that the current police disciplinary arrangements in the United Kingdom should be changed in such a way that policemen should be obliged to answer questions when their conduct is being investigated by their own officers. It seemed to me when such a proposal was made that it was monstrous; how could such an approach be perfectly all right so far as the police were concerned but wholly unacceptable for everybody else? But if we are changing our criminal procedures in Northern Ireland, I should be grateful if the noble Lord would tell us the implications for the police.

Then there is the question of the mentally handicapped. That is dealt with in part in the order. The noble Lord will be reminded no doubt of the case of Maxwell Confait, which led to a major judicial inquiry into exactly this question, the position of mentally handicapped defendants. There are clearly substantial implications so far as this matter is concerned. I shall be grateful to hear what the Government propose to do about this.

One could go on giving further illustrations of what will arise as a result of enacting this major change in the law by means of an order. However, I wish to come to a point that was touched on by the noble Lord, Lord Hylton. The whole discussion this evening has been about terrorists in Northern Ireland, but there is no reference to terrorists in the order. We are talking about all criminal defendants in Northern Ireland. We are talking about the frightened housewife who, as she goes out of Marks and Spencer in Belfast. is stopped in the street and accused of shoplifting. We are talking about a situation in which a man gets drunk and is involved in a charge of ABH or something of that kind.

The point has been made about a duty solicitor scheme in Northern Ireland. What is the answer to that? We have duty solicitor schemes in Great Britain. What do the Government propose to do in this regard? It would be a very serious matter to introduce a change of this sort without having an effective duty solicitor scheme in operation in Northern Ireland.

Let me ask another question. This is not about terrorist cases, where as we know from what was said by the Solicitor-General last night that the interviews will not be tape recorded for reasons that we all understand, but about all ordinary criminal cases where interviews will be tape recorded. The absolute silence of an accused person is fairly rare in England and Wales. What normally occurs in such a situation if an accused person is determined to be as difficult as possible is a tape recording that will contain periods of silence, expletives, comment on matters that may be entirely immaterial and the answers to some questions and not to others. What precisely will happen in Northern Ireland in such circumstances? I speak here about non-terrorist cases where tape recordings will be used. Is it intended that the full tape will be played in court or will some passages be edited? If so, who will have the responsibility? That is one of the questions that the current Home Office working party will no doubt be looking at.

We are of course legislating in advance of a consideration by that committee of these issues. They seem to me to be important matters. As the Government are asking us to grant them the powers tonight, I hope that we shall get answers to some of these questions tonight.

I return to the question of the caution, an issue that was raised, as the Minister will recall, 48 hours or so ago in another place. We were told by the Solicitor-General—the Minister has repeated it tonight—that the matter is now being considered by the Lord Chief Justice of Northern Ireland, in whom I think we all have immense confidence. Is it not strange, however, that we are being invited to support the order without knowing the terms of that caution? Of course the terms are of decisive importance. We are all familiar with the contents of the present caution in criminal proceedings. The contrast with the new one will be pretty striking.

Let me give an example. A colleague of mine, Mr. Barrie Irving, director of the Police Foundation, has worked out a possible caution that I suppose could be applied in non-terrorist cases in Northern Ireland. It would run something like this: You do not have to say anything in answer to the questions I am going to ask you, but all of our conversation will be tape recorded and the recording may be used as evidence in court. If you do not answer my questions this will also be recorded and you may have to explain your silence now in court". That is just one shot at it. Other forms of words will no doubt be suggested by others. It may well be that the Lord Chief Justice of Northern Ireland already has a proposal in his mind. That form of words indicates the decisive change in our system of criminal procedures in Northern Ireland under the order.

As to the principle of the matter, as I have indicated, I do not share the view that a withdrawal of the right to silence is the end of civil liberties as we know them—I have expressed that view with some emphasis—but I believe that it is a profound error to rush major changes in criminal procedure virtually undebated through Parliament. That is what we are talking about tonight. There has been no line-by-line consideration of this proposal. I think that that is a grievous error. I believe that the Government will come to regret it.

7.26 p.m.

Lord Fitt

My Lords, 1 associate myself immediately with the concluding remarks of the noble Lord, Lord Harris of Greenwich, in his criticism of the way in which the order was introduced.

I believe that a major change is taking place in relation to our legal constitution. Representing Northern Ireland for a number of years as I have and living in Northern Ireland as I do I have always felt, in the on-going tragedy of Northern Ireland as it existed over the past 20 years and in the continuing escalation of the number of deaths and injuries, that security and the problems that arise with it should be non-partisan. The luxury of Opposition politicians and Opposition parties should not be engaged in for the sake of opposition. Both a Labour Government when in office and the Conservative Government now in office have found themselves in great difficulty in trying to grapple with the murderous onslaught being waged in Northern Ireland.

When the restrictions on television were announced only a fortnight ago, I was able to predict what the objections will be to any security initiative being promulgated under this Government. I sat at the other end of this building the other day when this order was being debated. It was with a feeling of sickening despair that I heard again the series of arguments rehearsed that said that the Government should do nothing. I have heard this repeatedly. I take serious objection to it.

The debate that took place in another place was too short and limited. I need quote only some of the sentiments expressed in the course of the debate to illustrate how my argument is reinforced. First, the Opposition spokesman said that the Opposition would support the Government in their introduction of security initiatives that they thought would be effective. That leaves the Opposition in the position to determine what initiatives they think will be effective. Obviously they think that this one will not be effective.

The argument one hears rehearsed over and again is that the introduction of this order, which affects the right of silence, will not go down very well in America. One spokesman said: 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".—(Official Report, Commons, 8/11/88; col. 193.] Is that correct? Are the American people so hostile to this Government and to the British people in their attempt to find some way to lessen the increasing toll of murder in Northern Ireland? I can remember the American people only a few years ago being faced with terrorist attacks on their citizens, wherever the attacks might have taken place. The overwhelming majority of the American people supported a bombing raid on Libya. The President of the United States at that time had overwhelming support from a whole broad section of the American people in that retaliatory attack against the Libyans. I did not support it, but I say that to indicate that the whole of America and the so far unnamed other people might take offence and be hostile to Britain because of the introduction of the order.

The noble Lord, Lord Colnbrook, in his remarks telescoped exactly what my feelings are and have been. If the introduction of this order will prevent one murder or one maiming in Northern Ireland, I am inclined to support it. Another speaker in another place, and indeed in the Prayer as we read it today, said that this will diminish any support that there is for the police forces from the minority population in Northern Ireland. Indeed it was said in the House this evening that the introduction of the order will alienate sections of the nationalist population. Why should it? Why should any section of the nationalist population be alienated by an order which is attempting to stop murder and mayhem on the streets of Northern Ireland?

The order is not aimed at the nationalist community. It is aimed at criminals arid terrorists in both communities. There may be people in the Royalist section in the community who are hostile to the order; but anyone who is antagonistic towards the Government because of the introduction of the order is already firmly in that camp at the moment. Nothing will change that. That section of the nationalist community which will be hostile to the order is already part of the Sinn Fein constituency. They are the people who give protection to murderers. They are the people who give succour and solace to people who are engaged in murder. The same or perhaps a smaller element exists in the loyalist community so we shall not be very worried about the objections those people may have against us.

I should like to see the day come when it will be unnecessary to tamper with longstanding bulwarks of our judicial system that have proved to be so effective over many years. Another speaker said in the course of a debate in another place that bringing in legislation such as this will not stop the violence. We have to increase support for the RUC and the security forces and make it possible to do away with this type of legislation. I fully subscribe to that, but it will be a very long haul politically before we can bring about total support. We may never reach that stage of total support for the security forces in Northern Ireland. That again is the gospel which says, "Do nothing".

I listened to a Labour Member on television when he was objecting to the introduction of the restrictions. He was asked by an interviewer in the television studio on breakfast time TV what he would do in these circumstances. He was asked what would he his answer to terrorists having ready access to television and the media. He said: "It is just to go down into the trenches and face a long hard slog". What does that mean? It means absolutely nothing. It is pure, absolute rhetoric.

I believe that this Government—and I hope sometime that there will be a Labour Government—are entitled to the support of the Opposition, whoever that opposition may be, in their attempts to bring the tragedies in Northern Ireland to an end. This carping criticism that I have witnessed over this past year is a betrayal of the people in Northern Ireland who are hoping that this Government, or whatever government are in power, will take whatever steps they can to bring the tragedy to an end.

7.35 p.m.

Lord Lyell

My Lords, this evening we have heard some notable comments and speeches. The House and the Government will be immensely grateful for all the comments that have been made in studying this complicated and to me difficult order, although it has been described in different ways by my noble and learned friend who (I think I have quoted him correctly) said that it was a modest measure. That was not necessarily the view taken by the noble Lord, Lord Harris; but all the arguments we have heard have been highlighted and rehearsed, and your Lordships who are involved in legal affairs and criminal evidence debates in this House as well as another place will be very familiar with them.

It has been a constant thread throughout the debate this evening that the objective of the trial process is that justice is to be done. The innocent should go free; but the guilty should be convicted. The arguments for and against change, certainly in carefully defined circumstances such as those contained in the order, have until recently failed to take account of the opportunities that these rules of evidence provide for the hardened professional criminal—including but not totally concerned with the terrorist—to thwart justice. The Government have a duty, and this has been accepted by everybody in your Lordships' House, to see that the rules designed for the protection of the innocent are not simply exploited as a shield for the guilty. It has become the growing practice of the professional criminal in England and Wales as well as the hardened terrorists and the racketeers in Northern Ireland when questioned in connection with a suspected offence simply to say nothing. Yet however reasonable the question, however much common sense might tell the jurymen or the court that an innocent person might have sought to give a reply or offer an explanation, no inference whatever may be drawn from the failure to do so. We believe that that is no longer right and that it ought to be corrected.

At the outset I stress the provisions in the order and what the order does not do. The order does not shift the burden of proof from the prosecution to the defence. Secondly, it does not render the refusal of the defendant to answer questions at any stage a criminal offence. In no circumstances—

Lord Harris of Greenwich

My Lords, is the noble Lord aware—

Lord Lyell

My Lords, will the noble Lord just have patience? I shall be coming to all the points that he raised.

Lord Harris of Greenwich

My Lords, will the noble Lord—

Lord Lyell

My Lords, I ask the noble Lord to have patience until I finish this paragraph. He spoke for a considerable time and I hope that he will give me the courtesy for another few seconds while he thinks of another point.

Thirdly, in no circumstances can anyone be convicted on the basis of his silence alone. The order makes this specifically clear, although it would be clear in law, even if it were not so expressed. That was a constant thread of my remarks earlier this evening. It was a constant thread in the remarks made by my right honourable friend in another place as well as by my honourable and learned kinsman the Solicitor-General in another place. I yield briefly to the noble Lord.

Lord Harris of Greenwich

My Lords, is the noble Lord aware that nobody has challenged him on any of these points during the whole of the debate this evening?

Lord Lyell

Not specifically, my Lords, but possibly when all of us read in the morning the comments that have been made, and some of the very tactful points made by the noble Lord, Lord Harris, we may have our own opinions. I shall come to the points that have been raised by the noble Lord. Indeed the thrust of what I said at the outset is true. They have been challenged all round and in another place and it is right that I should make the points.

The noble Lord, Lord Prys-Davies, asked why the law is being changed in Northern Ireland in a separate way and ahead of whatever my right honourable friend the Home Secretary may propose for England and Wales. The matter also interested the noble Lord, Lord Hylton. We are dealing with two jurisdictions so that much of the general criminal law of Northern Ireland is, in legislation, distinct from the law of England and Wales. The review of the law of criminal evidence in Northern Ireland began last year, well before the establishment of the working party referred to by several noble Lords. The review body concluded that the Government should move quickly to amend the law for Northern Ireland in the light of the grave challenge from continuing terrorist violence and other serious crimes, particularly racketeering.

The noble Lord, Lord Prys-Davies, also asked about the provisions in a draft order and asked whether they might be amended. That matter also concerned the noble Lord, Lord Harris. We must all wait to see what is proposed by my right honourable friend the Home Secretary as a result of the work of the review body which he set up. Both noble Lords will know that an official from the Northern Ireland Office is a member of the working party on the right to silence. In strict legislative terms there would be no difficulty in eventually bringing the law on criminal evidence in Northern Ireland into line with that in England and Wales.

The noble Lord, Lord Prys-Davies, raised the interesting spectre of himself being stopped in the street and questioned by a constable. I assure him that any inference which the court may be entitled to draw from the silence of the noble Lord, even though he may have explained the reason for it, would depend upon the questions. I am sure that the noble Lord is aware that in Section 18 of the Northern Ireland (Emergency Provisions) Act 1978 certain obligations are placed upon any person who is stopped and questioned by a constable or member of Her Majesty's Forces on duty. It will also depend upon whether the court was satisfied that that person—and I cast no aspersions upon the noble Lord—had been properly warned by a constable or a member of Her Majesty's Forces, in uniform and on duty, of the implications of his silence.

The noble Lords, Lord Prys-Davies and Lord Harris, raised the fact that only short notice had been given of the debate on the order this evening. I regret the lack of notice and offer my apologies and those of the Government to your Lordships for the breach of courtesy. It was forced upon the business managers in your Lordships' House by the timetable required for bringing the provision into effect.

The noble Lord, Lord Prys-Davies, referred to Article 3(1) of the order which is particularly wide. The inference that is mentioned in Article 3, as well as in Articles 4 and 5, can be a proper one only in the case and as considered by the court. The less cogent the circumstances of the accused's silence, the less the court will be inclined to draw any inference from the silence. That will go a long way towards explaining the Government's considerations on the persons who may be detained for questioning after what was thought to be a shopping excursion, or a crime of that order.

The noble Lord, Lord Hylton, raised two points. The first was the question of consultation. The issue has been debated exhaustively over the past 16 years and the legal profession remain deeply divided. However, the Government decided that further formal consultation would not produce a consensus for change and proceeded forthwith with the draft order.

The noble Lords, Lord Hylton and Lord Harris, raised the question of confining the order to serious crime. If the inferences which we find in the order are there to be drawn I believe that any legislator, and any judge and jury in any court, will agree that they should be drawn. It will be evident to noble Lords that a court may view silence on the part of a low-level petty criminal as a different matter from silence on the part of a person accused on substantial grounds of serious crime. Those two factors weigh heavily.

The noble Lord, Lord Hylton, raised a problem in respect of the safeguards for persons detained for questioning in police custody in Northern Ireland. I should like to stress the reasons why we believe there are sufficient safeguards. In respect of any person arrested under the terrorism provisions, Section 15, paragraphs 1 and 2, of the Northern Ireland (Emergency Provisions) Act 1987 obliged the police to inform the suspect of his right to inform someone that he has been arrested and where he is being detained and also to inform him of his right to consult a solicitor in private.

The draft Police and Crinminal Evidence Order and its associated codes of practice, which will shortly be laid before Parliament, will propose important safeguards for suspects held in custody under the general criminal law. The police will be obliged to inform the suspect of his right to consult a solicitor. Suspects who arc detained for more than six hours will normally be taken to police stations specifically designated for that purpose. They will come under the protection of uniformed custody officers whose primary function will be to ensure that the suspects' rights are safeguarded. The maximum period of detention without a court appearance will be reduced from 48 hours to 36 hours. Within that period the need for continued detention must be periodically reviewed by supervising officers.

The noble Lord, Lord Moran, asked whether your Lordships could be consulted when discussing better ways of handling legislation in Northern Ireland. The matter was also raised by the noble Lord, Lord Harris. We should welcome constructive suggestions from your Lordships and I shall raise the point with my right honourable friend the Secretary of State.

The noble Lord, Lord Harris, raised a number of issues. The first major issue related to the virtue of Articles 5 and 6 which he considered to be dealing with the Irish Criminal Justice Act. It is not merely that the provisions which we have in Articles 5 and 6 of the order before the House deal with Irish Criminal Justice. I am sure that our friends and colleagues in Northern Ireland appreciate the fact that Articles 5 and 6 enable a person to be charged on the basis of silence and other evidence. The last three words are most important; other evidence must also be present. If in committal proceedings the accused stays silent those measures can assist the magistrate in concluding that the case should be sent for trial. Articles 5 and 6 assist in bringing a case to court where Articles 3 and 4 would not do so. Eventually the decision will be made by the court.

The noble Lord, Lord Harris, asked about police disciplinary procedures. At present, the Government have no plans to propose changes in the disciplinary procedures for the Royal Ulster Constabulary. If police officers face criminal charges the provisions, if approved, will apply. However, once again I shall draw the specific attention of my right honourable friend the Secretary of State to the point raised by the noble Lord, Lord Harris.

The noble Lord asked about the right of silence in police disciplinary proceedings. As always, police discipline charges have to be proved beyond reasonable doubt. The law of evidence is broadly followed but the principle here is that the proceedings must be fair to the officer. There would be nothing unfair in the future as regards disciplinary procedures if comment can be made and inferences drawn on the same lines as we have in the draft order before us this evening.

The noble Lord had one query about tape recordings in non-terrorist cases. We intend that the codes of practice under the proposed Police and Criminal Evidence (Northern Ireland) Order will include the detailed provisions on the tape recording of interviews and, so far as possible, will be fully in line with the code of practice on tape recordings which applies even now in England and Wales. I understand that the code for England and Wales provides for the making of an interview record which will be compiled in writing and will accurately report what has been said at the interview. A written record is provided to the defence and, if agreed, is entered in evidence. However, if nothing is said then there will be no record.

I should like to thank my noble friend Lord Colnbrook, who has very great experience of the enormous responsibilities of acting as Secretary of State in Northern Ireland. I shall read carefully his comments on the legislative procedures in Northern Ireland, his forthright comments on the order that we have this evening as well as what he believes are the inferences which will be drawn in Northern Ireland.

As regards my noble and learned friend, his remarks and his speech this evening take me back 11 years when I was on the other side of the House and my noble and learned friend allowed me to open the case for the Opposition in the Unfair Contract Terms Bill. I was in the middle of very erudite lawyers, and my noble and learned friend has lost nothing of his skill, ability and fire since then. We are very grateful that he has come here this evening to support the order. I believe that many of his comments will bear further reading. I particularly enjoyed his comments on the coaching of suspected terrorists. I have the manual referred to by my noble and learned friend before me.

I should like to thank my noble friend Lord Brookeborough for drawing to our attention the report of the Chief Constable of the Royal Ulster Constabulary as well as drawing to our attention the appalling pressures which apply to every member of the security forces in Northern Ireland—not just the brave soldiers and lady soldiers of the Ulster Defence Regiment but every single member of the security forces in the Army, the Royal Navy, and the Royal Air Force as well as in the Royal Ulster Constabulary.

I also thank the noble Lord, Lord Fitt, for his forthright comments at the end of the debate. All of us will read what he said and I should like to pay my tribute to the tremendous courage shown over many years in Northern Ireland by the noble Lord.

Noble Lords

Hear, hear!

Lord Lyell

My Lords, I thank him for his remarks this evening. We are more than grateful for his support for what the Government are trying to do for everybody in Northern Ireland.

I should like to conclude by saying that the Government believe that the majority of reasonable and decent people here and in Northern Ireland will welcome the measures which I have set out in the order as evidence of our firm resolve to bring the perpetrators of evil to justice.

On Question, Motion agreed to.