It probably goes without saying – correction, it has gone without being said – that the recommendations of the Chilcot Report, released today, that evidence derived from phone taps could be admissible in evidence in criminal trials (for instance, against suspected terrorists) do not apply to Scotland – only England and Wales. But I haven’t heard that being said on the news on BBC Radios Four and Five, or BBC One on the telly. Nor is it stated in the report that currently appears on the BBC News website.
But it’s there in black and white in the report itself. The problem is that, while the interception of communications is a reserved matter (i.e. still the responsibility of the Westminster government), procedure in courts of law and policing in Scotland are the responsibility of the devolved government in that country. So the Chilcot Report recommends that some form of Public Interest Immunity be introduced in Scotland, similar to that in England: meaning, as I understand it, that details concerning the methods used to obtain intercept evidence, and the full details of that evidence, could be withheld from open session of court in order to keep those intercept methods secret in the public interest. There are currently proposals of precisely this nature before the Scottish Parliament, which may – or may not – result in PII legislation in Scotland. However, as the Chilcot Report states on pp. 21-22: “We therefore recommend no change to the current legal regime for interception in Scotland until new legislation is in place and its potential impact has been assessed”.
So something that Gordon Brown insisted should be introduced, if it is in the end, in the interests strictly of national security (meaning the security of the UK as a whole), may come into law in England and Wales but not in Scotland. Does this matter? Well, surely where national security is at issue, there should not be one law for England and Wales, and one for Scotland – if we are one nation, that is. Similarly, where civil liberties are at issue. This is the other side to the coin of phone-tap evidence that didn’t seem to weigh much in the balance in the PM’s speech in the House of Commons this lunchtime. So depending on how you think the admittance of phone-tap data as evidence in criminal proceedings may either advance or impede the ‘war on terror’, or may impinge or not on civil liberties – it’s quite likely that some of the residents of the UK, terrorists and law-abiding citizens, are going to get off Scot free.
Addendum, 7 February: later in the day, the reports did indicate clearly from the outset that the proposed change to the rules affected England and Wales only. However, this was stated without any further explanation or comment; for instance, what were the ‘national security’ implications for Scotland going its own way on this issue, if that’s what they eventually decided to do? Was it not so important a matter that pressure should be brought to bear on Holyrood to pass the necessary Scottish legislation, to ensure that all UK citizens enjoyed the same degree of protection against the terror threat? Or if it wasn’t important enough to push through the measure in Scotland, was it really that important or necessary in England and Wales? Is it perhaps just another case, like that of the superfluous extension of detention without trial for terror suspects to 42 days, where GB [Gordon Brown] wants to be seen to be tough and decisive, but the measures involved are quite ineffective? And then the reporting as a whole still presented the debate as if it related to the whole of the UK, which it quite manifestly didn’t, as the Scottish dimension was not touched upon at all.