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Lord Lucas: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.

Northern Ireland (Emergency Provisions) Bill

7.4 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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Moved, That the House do now resolve itself into Committee.--(Baroness Denton of Wakefield.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]

Clauses 1 to 46 agreed to.

Clause 47 [Right of access to legal advice]:

Lord Holme of Cheltenham moved Amendment No. 1:


Page 31, line 22, at end insert--
("( ) In the event that any delay is permitted in complying with a request under subsection (1), no inference of guilt on the part of the accused may be drawn if he chooses to remain silent during the period of the delay.").

The noble Lord said: This simple amendment is intended to deal with something which is a problem for the Government, as the noble Baroness acknowledged at Second Reading. More importantly, it represents an attempt to mitigate a dangerous potential anomaly in the examination of suspects. As legislation currently stands, reinforced by this Bill, a suspect might be refused access to a solicitor on the basis set out in Section 47, and then have his silence during interrogation, during the 48-hour period before he is allowed to see a solicitor, taken as an inference of guilt. That is the issue on which the European Court of Human Rights found against the Government in the Murray case.

At Second Reading the noble Baroness said:


    "On the narrower question of inferences being drawn at a trial from silence at a time when access to a legal adviser was denied, the court found against the United Kingdom".--[Official Report, 21/3/96; col. 1390.]
She went on to say on that occasion that the Government are considering how best to respond to the judgment in the Murray case, but said, in fairness, that this Bill was not the place to do it. However, as she knows, I warned her on that occasion that we on these Benches might want to revert to the matter at Committee.

What is proposed in this amendment is very simple. It is that no inference of guilt should be drawn from silence during a period in which the suspect is denied access to legal advice. I am sure that the Government acknowledge that the arguments on the conclusions to be drawn from silence are, in all events, finely balanced. But, even if we all wholeheartedly accepted the notion of the imputation of guilt from silence, surely it is belt and braces on the part of the police to expect both to deny legal advice and to be able to argue guilt from the ensuing silence.

I well know the pressures of pursuing terrorism wholeheartedly, but I do not believe that we should do so without the restraint of due process. There are some who argue that in pursuing terrorism in Northern Ireland, from the civil liberties point of view, solicitors are deliberately withheld in order to secure confessions and that the weak-minded are threatened by that. If they remain silent they will be convicted, so why not confess straightaway? However, there are others who argue that solicitors may be accomplices to the crime--and there

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have been instances of solicitor malpractice in Northern Ireland--and therefore, once a solicitor is warned, the whole terrorist circle will close up and there will be no further arrests.

I understand both those points of view, but I hope that this is a useful amendment in that it meets both those sets of concerns. The amendment will allow inferences of guilt still to be drawn and legal advice to still be withheld. But it puts a price on the withholding of legal advice so that interviewing officers are invited to use the powers sparingly--for example, only when they genuinely believe that a solicitor may give unhelpful warnings--because there is no question of threatening the weak-minded with inferences of guilt drawn from their silence. Therefore, I believe that this amendment is a sensible lifeline for the Government on a tricky problem. I look forward very much to hearing from the noble Baroness how the Government respond to it. I beg to move.

Lord Prys-Davies: I support this carefully drafted amendment and I agree with what the noble Lord, Lord Holme of Cheltenham, has said. I do not want to add to the general argument except to say that fairness is at the heart of justice. The noble Lord, Lord Holme, has referred to the Second Reading debate and in particular to what the Minister said in Hansard at col. 1390. I regret that I was unable to take part in that debate. On reading the paragraph, it seems to me that the Minister accepted that an amendment along these lines is probably needed in order, as I understand it, to comply with the judgment of the European Court of Human Rights in the Murray case. As I said, it is also needed in order to ensure fairness to the person who is detained and who has requested access to a solicitor in the circumstances which are set out in the amendment.

On Second Reading, the Minister said that the Government required more time to conclude their consideration of the best way to proceed. The Minister said:


    "We have not yet concluded what steps, legislative and administrative, should be pursued to ensure that we comply with our obligations under the convention".--[Official Report, 21/3/96; col. 1390.]
I appreciate that the judgment was given only on 8th February 1996 and that the wheels of departments grind slowly. However, if the Minister is unable to accept the amendment today, I think that the Committee should be told who is now giving that consideration to the relevant matters. Are they being considered by an interdepartmental committee? If so, what departments are represented on it? I presume that the Northern Ireland Office, the Home Office and the Lord Chancellor's Department will be involved. Can the Minister indicate what difficulties, if any, have already been identified? Again, if we miss this opportunity of amending this particular Bill, when do the Government expect that the law can be amended to ensure that we comply with our obligations under the convention? Finally, while this matter is under consideration, can the department give us any assurance that the message of the amendment will be respected and complied with?

Viscount Colville of Culross: I hope that the noble Baroness will be very careful before she accepts the

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amendment. I do not now speak as somebody who used to be concerned with the Emergency Provisions Act; I speak much more as somebody who is concerned with the day-to-day application of inferences to be drawn from silence in all the ordinary courts in this country. The 1988 order under which inferences were first introduced in Northern Ireland is not confined to scheduled offences; nor is it confined to detentions under terrorism. In England and Wales the similar provision which was introduced in the Criminal Justice and Public Order Act 1994 now applies to all offences in magistrates' and Crown courts in those parts of the United Kingdom. The important point is this: those provisions do not apply regardless of the facts under which a silence arose. They are applicable only after discussion by the judge with counsel, and after some sort of agreement about what might be the proper inferences that are to be drawn by the jury if, indeed, any are to be drawn.

I suggest to the noble Baroness that picking out that particular circumstance and making such a provision in this Bill will invite others to start drawing distinctions between different sets of circumstances which are not provided for either in the 1988 order or in the 1994 Act in England and Wales. It ought to be the subject of a proper discussion between counsel and a judge on a case-by-case basis. I can see no difficulty in the circumstances which the noble Lord, Lord Holme of Cheltenham, set out, whereby counsel could argue that an inference should not be drawn, but I do not believe that there should be a specific legislative provision to that effect. Therefore, I hope that the generality of discretion that is now available to the courts both in Northern Ireland and here will not be diminished by a provision of this sort.

7.15 p.m.

Baroness Denton of Wakefield: As the noble Lord, Lord Holme of Cheltenham, said, the amendment has been triggered by the judgment of the European Court of Human Rights in the case of John Murray. The noble Lord indicated at Second Reading that he would probably table such an amendment. In the judgment, which concerned inferences drawn from silence, the court acknowledged the possibility within the convention of restrictions for good cause on access to a lawyer at the initial stages of police interrogation, but in all the circumstances of the Murray case, taking into account the possibility of inferences from silence, it concluded that to deny access for the first 48 hours of questioning was incompatible with the convention.

The judgment has implications beyond the emergency legislation, as access to a solicitor may be denied in ordinary criminal cases under PACE. It has implications in England and Wales. I am grateful to the noble Viscount, Lord Colville, for putting so clearly the dangers involved in including such an amendment in the Bill. As I explained on Second Reading, we do not believe that the most appropriate response to the judgment would be to amend this Bill in the way proposed. It is a complex matter, requiring liaison with the Home Office, the police and the judiciary in both Northern Ireland and in England and Wales.

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I can assure the Committee of two things. First, the options for legislative change are being explored. The noble Viscount drew attention to the problems at issue. Secondly, we very much hope that the need to avoid further breaches of the convention will substantially be met by changes to police and prosecution practices. I can understand that noble Lords may be impatient to see a legislative response to the Murray case, but I emphasise that much can, and is, being done in the meantime to ensure that defendants do not have inferences drawn against them from their silence during an interview conducted before they have seen a solicitor. The most obvious step is for the police to be sparing in their use of the power to defer access to a solicitor. Deferrals are now much rarer than they were a few years ago. Even in terrorist cases in Northern Ireland, access to a solicitor nowadays is delayed comparatively rarely in contrast to the position a few years ago. In 1994, of the 1,379 requests for access only 187 were delayed; in 1995, up to the end of September only one request out of 322 was delayed.

The noble Lord, Lord Prys-Davies, asked who was involved in the consultations about the implications for other parts of the jurisdiction in the United Kingdom. The Home Office, the Law Officers and, of course, the Northern Ireland Office are involved.

I hope that I have been able to give the Committee sufficient assurances that this is not something that we treat lightly. However, we do not believe that such provisions should be included in this Bill. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.


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