Public Order (Northern Ireland) Order 1987

HL Deb 10 March 1987 vol 485 cc1017-42

8.15 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lye11)

My Lords, I beg to move that the draft order laid before the House on 19th February be approved.

Before I speak about the draft order, I should like to say a few words about how much I regret, as I am sure all noble Lords do, the absence of my noble friend the late Lord Brookeborough, who died so tragically last week. I am sure that he would have made an invaluable contribution to this debate, just as he has over the years so assiduously attended your Lordships' House to argue the Unionist cause with open-mindedness and above all awareness of the need for reconciliation. I shall miss the keen interest he took in agricultural matters and the welcome that he always gave to me, my predecessors and to everybody else who came to that lovely corner of the Province, County Fermanagh. I am sure your Lordships will agree that with his long service to his country, both at home and abroad, his great personal courage (I think your Lordships will permit me to say, often on horseback) and not least his humour and humanity, he will be greatly missed.

You Lordships will recall the debates in this House on the Public Order Act 1986 and will recognise that many of the issues discussed then will arise during our consideration of this draft order. Indeed, I hope to show your Lordships that the principles underlying the draft order are the same as those which guided the Government in drawing up the Public Order Act. The draft order differs in detail from the provisions of the Public Order Act in consequence of the different requirements of the Province in this field.

The public order situation in Northern Ireland is very different from the position in the rest of the United Kingdom, and public order legislation in Northern Ireland thus requires a slightly different emphasis. The net result is a body of draft legislation which fully reflects the principles underlying public order law throughout the United Kingdom but which also takes full account of local needs.

The public order legislation which currently applies in Northern Ireland was last amended in 1971—the 1981 order was pure consolidation—and developments in Northern Ireland since then suggested to the Government that some changes were required. A number of recommendations to this effect were made by the Chief Constable of the Royal Ulster Constabulary.

I should like to make one other general point before turning to the detailed provisions of the draft order. The draft order is not, as some people have portrayed it, a bundle of new and repressive measures which vastly extend the powers of the police and of my right honourable friend the Secretary of State to prevent the normal expression of political, industrial or cultural views. The order is intended to operate for the benefit of the whole community and does not interfere in any way with those who are intent on demonstrating or expressing their views on any subject in a peaceful manner and within common sense bounds that every reasonable person would accept as being appropriate.

As for claims that the draft order will extend the powers of the authorities, I should like to draw your Lordships' attention to the fact that it confers no new powers on the police, though it puts their existing power under common law to impose conditions on open air public meetings on to a statutory basis and it redefines the grounds on which certain of their powers may be exercised. The only new power conferred on the Secretary of State is the power to exempt specified classes of procession from the notification require-ments of Article 3.

The draft order has four main elements. First, it amends and updates the law on the control of public processions and open-air public meetings. Secondly, it updates the law on the prevention of incitement to hatred and brings it into line with the equivalent Great Britain legislation. Thirdly, it consolidates and makes minor amendments to miscellaneous existing public order legislation. Finally, it provides for the repeal of the Flags and Emblems (Display) Act (Northern Ireland) 1954.

The provisions concerning public processions and open-air public meetings are contained in Part 11 of the draft order. This part of the draft order requires organisers of public processions to give seven days' notice to the police, rather than the five days required under the 1981 Order. This requirement for advance notice applies to all public processions except funerals, but there is provision for the Secretary of State to exempt, by order, other classes or descriptions of procession. This particular provision could he applied,—to take one example—to the regular Salvation Army processions which obviously pose no risk of public disorder.

I should like to refer at this point to one aspect of the draft order which differs from the Public Order Act, and which has attracted some criticism and indeed has been misrepresented. The draft order does not exempt from the requirement to give notice processions which are customarily held in a particular area or along a particular route. As your Lordships will be aware, in the divided society of Northern Ireland, traditional parades unfortunately all too often become the focus of disorder—not necessarily because that is the intention of the organisers. The requirement for notification is essential in order that the police shall have adequate information about the intention of the organisers to enable them to plan the policing of the event, and have the opportunity to discuss matters with the organisers.

During the consultation process a number of bodies expressed concern that there was no provision for spontaneous processions, such as might well occur when a sports team returns home from a notable victory. We hear about the great boxer Barry McGuigan and even of Denis Taylor returning to Ireland. Those are unique occasions which give rise to great joy and where there is probably not a great risk of disorder. The draft order now makes provision for such occasions.

The grounds on which a senior police officer may impose conditions on a procession have been brought into line with those which apply in England and Wales and the common law powers to impose conditions on an open-air public meeting are put on a statutory basis and made subject to the same grounds.

The power of the Secretary of State to prohibit processions and meetings is unaltered, except that the grounds on which it is exercisable are rephrased to reflect the wording of the Public Order Act and of the police power to impose conditions on public processions.

The remaining provisions of Part II of the order empower the Secretary of State to make an order requiring the registration of bands, and to provide for offences concerning attempts to disrupt lawful public processions or open-air meetings. These provisions are mainly a consolidation of existing provisions in the 1981 order. I should explain to your Lordships that the power to require the registration of bands has never yet been exercised and there is no present intention to do so. Certain bands have caused a great deal of offence and disturbance but I am pleased to be able to report to your Lordships that the organisers of many of the major parades in Northern Ireland have very responsibly taken steps to ensure that bands attending their parades behave in an appropriate and decorous manner.

Part III of the draft order contains provisions against the stirring up of hatred or arousing of fear. These provisions follow closely the equivalent provisions of the Public Order Act. The significant difference is that the draft order concerns both racial and religious hatred, for reasons which in the Northern Ireland context will be perfectly obvious to your Lordships. The provisions are intended to make the law against incitement to hatred more effective. Under the 1981 order it is necessary for the prosecution to prove an intent to stir up hatred; the new provisions make it an offence to use threatening, abusive or insulting words or behaviour with that intent, or if, having regard to all the circumstances, hatred is likely—I emphasise that—to be stirred up. Your Lordships will find that reiterated time and time again in the Articles in Part III. The new provisions also extend the offences concerning inflammatory material to cover the media, such as film or video recordings.

Some concern has been expressed, by the National Union of Journalists among others, that these provisions may interfere with the normal activities of the press in reporting events in Northern Ireland. I do want to assure your Lordships that this is not the intention, nor is it the effect, of the new provisions. During the consideration of the Public Order Bill in another place, it was my right honourable friend the Secretary of State who on 20th March 1986 pointed out that the British Guild of Newspaper Proprietors had expressed similar fears about the equivalent provisions of that Bill. As a result the Bill was amended at Report stage to include the words "having regard to all the circumstances". This provision enables the prosecuting authorities and the courts to distinguish between legitimate reporting and comment on the one hand and inflammatory material on the other, and the same wording has been incorporated in Articles 9, 10, 11, 12 and 13 of the draft order.

I will take your Lordships to Part IV of the draft order, which consolidates and rationalises various public order offences which at present appear in the 198 I order and in the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1969.

Part V of the order before us this evening makes provision for arrest without warrant for certain offences under the Order. It requires the consent of the Attorney General for prosecution in respect of offences under the incitement to hatred provisions or for the wearing of political uniforms, and it provides for a court to order the forfeiture of articles connected with various offences.

Finally, the draft order repeals the Flags and Emblems (Display) Act (NI) 1954. This is a measure which has been widely misunderstood and misrepresented. The repeal of the Act will not affect the fact that the Union Flag is the official flag of the United Kingdom and it will continue to be the flag which is flown from public buildings in Northern Ireland on public occasions. There is no question of the Irish Tricolour being given any status by the repeal. It will no longer be an offence in itself to interfere with the display of a Union Flag on private property, but any such interference would involve the commission of other criminal or civil offences—for example, criminal damage. The peaceful display of the Union Flag, or any other flag, will continue to be protected. The police will also retain their general duty under common law to take whatever steps are necessary to prevent a breach of the peace arising from the provocative display of any flag or emblem.

Legislation in the public order field is always a sensitive and often a controversial matter. It has to strike a careful balance between preserving the rights of individuals—for example, to demonstrate their views—and giving the police the miminum powers necessary to enable them to protect the whole community from the effects of public disorder.

In the Northern Ireland context that balance is perhaps even more difficult to strike than elsewhere because, in the circumstances of a divided community, public disorder only too frequently gives rise to intercommunal tension and may even be exploited by terrorist organistions. I hope your Lordships will agree that this draft order strikes that difficult balance. With that, I commend this order to your Lordships' House and I beg to move.

Moved, That the draft order laid before the House on 19th February be approved.—(Lord Lyell.)

8.30 p.m.

Lord Prys-Davies

My Lords, we on these Benches wish to be associated with the tribute paid by the noble Lord, Lord Lyell, to the memory of the late Lord Brookeborough. Although he was opposed to the central thrust of the Government's policy towards his beloved Ulster, he continued to come to your Lordships' House until he was laid low with sickness. Here he continued to represent the interests of the people of Ulster according to his light.

We are grateful to the noble Lord for taking us through the provisions of this important order. We have been told that it brings the law of public order in Northern Ireland more closely into line with the principles of public order law in England and Wales as that law has emerged in the Public Order Act 1986. However, there is an immense gap between the Public Order Act 1986 and this order.

The order preserves many of the distinctive features of public order law in Northern Ireland, much of which is founded on the Northern Ireland legislation which was passed in 1981 and to which we have been referred by the Minister, and indeed on even earlier legislation. In the result, the criminal law which will apply in Northern Ireland in this area of the law will continue in some respects to be tougher and more extensive than that obtaining in England and Wales. To this the Minister replies that the divided Province has more than its share of upheaval and public disorder, but I am not entirely sure that that is a conclusive reply.

The proposal for this order was published on 1st December and comments had to be received by 16th January so that the timetable of the consultation —bearing in mind also that Christmas Day, Boxing Day and New Year's Day fell within the period—was exceedingly short for so important a subject. I acknowledge that there have been important amendments to the order as originally proposed; nevertheless, the order before the House is rushed legislation, and that in an area which requires this fine balancing exercise between the freedom to protest and the requirements of public order which the noble Lord, Lord Lyell, has himself acknowledged to be necessary.

The House will recall that the Public Order Act 1986 was based to some extent on the report of the Law Commission, but this order cannot be presented as the result of any articulated research and evaluation of the effects of existing public order legislation in Northern Ireland. It is rushed legislation.

It is to be regretted that the press release which accompanied the proposed order on 1st December failed to indicate in what way public order law in Northern Ireland, after the passing of the proposed order, would be different from that obtaining in England and Wales. It seems to me that a short comparative table would have been very helpful to enable us to grasp the significance of the order and the major discrepancies between the English and Welsh legislation and the proposed order.

If I followed the noble Lord correctly, he referred to discrepancies of detail but I believe they are more than that. There are discrepancies of some significance. We have not seen a summary of the comments of the organisations and individuals which were received by the Northern Ireland Office, but we know from press reports that some of the articles have been criticised, sometimes fiercely, on the grounds that they encroach too severely on civil rights and are an attack on basic democratic rights. If that criticism is correct and if it is sound, the order could be counter productive. We hope that the Government have taken that into account.

It has also been argued with a great deal of force—and this has been reflected in an Early-Day Motion put down in the other place—that this kind of legislation should have been in the form of a Bill, capable of being scrutinised and amended, rather than in the form of this unamendable order.

I turn to the order. As the Minister explained, it has four main features; Part II, which controls public processions and open air meetings; Part III, which relates to stirring up hatred or arousing fear; Part IV, which relates to miscellaneous public order offences; and, finally, Part V, which includes the repeal of the Flags and Emblems (Display) Act (Northern Ireland) 1954. I should like to make a few brief comments on those four parts of the order.

I appreciate that some of my colleagues on these Benches and others will disagree with me, but I believe that the Government were right to impose a compulsory duty to give prior written notice to the police of the intention to hold a procession so that they can assess the scope for disorder. However, I note and I welcome the amendment which has been made to the proposed order which provides for the seven-day notice to be waived where the giving of such notice is not reasonably practicable. That amendment should go some way towards safeguarding the position of those who are engaged in a spontaneous or impromptu march. However, I suggest that it is still in the interests of such people that they should give notice wherever possible, even though it may not be a seven-day notice.

We are also pleased that the Secretary of State has been given power to exempt class processions from the need to give a seven-day notice. However, why are the classes of processions which are to be exempted not specified in the order?

I should like to refer to one or two discrepancies between this part of the order and the Public Order Act 1986. Unlike the position under that Act, anyone who takes part in a procession in respect of which a due notice has not been given, and although he had played no part in organising the procession, could be guilty of an offence. There is another worry. Unlike an offender against the relevant provisions in the Public Order Act 1986 who can only be fined for committing an offence, an offender in Northern Ireland against this article in this order can be sent to prison for a term not exceeding six months and can also be fined

There must be many people in Northern Ireland, even though it is a divided community, who are unconvinced that a person who takes part in a march in Northern Ireland should be caught by an offence which would not apply to him if he took part in a similar procession in England or Wales. They will be unconvinced that he should be subjected to imprisonment when he would not be so subjected for identical behaviour in England or Wales.

In the context of criminal law, how can conduct be criminal in one part of the United Kingdom and not criminal in the remainder of the country? I am sure that it is simply not good enough for the Government to say to the people of Northern Ireland, "We are merely following the 1981 precedent". It occurs to me that the Government may have been too ready to fall hack on the 1981 Order in order to justify some other concept in this Order such as that of the open air public meeting. That is quite an interesting commentary, because the prospects for peace and order in Northern Ireland seem as bleak today as they were in 1981. That suggests that the 1981 Order, upon which the Government place such reliance, has not been all that effective. I very much doubt whether it should have been imported into the new order.

It is reported in the press that the leader of the Democratic Unionist Party claims that he has been informed that this part of the order will not be applied to nationalists but only to those who oppose the Anglo-Irish Agreement. The Minister has already replied to that statement by the leader of the Democratic Unionist Party in saying that this order was for the benefit of the whole community. I invite him to say again that in so claiming the leader of the Democratic Unionist Party has no basis for his statement and that his claim is groundless.

Will the Minister also confirm another point? The National Council for Civil Liberties believes that the articles relating to the banning of processions and open air meetings are contrary to Article 11 of the European Convention on Human Rights. The department has considered that allegation by the NCCL and has rejected it, but I understand that the NCCL is repeating the charge. I hope that the Minister can confirm that the department's senior lawyers are satisfied that nothing contained in this order is contrary to the provisions of Article 11 of the convention.

I think it is clear that we have serious misgivings about the implications of some of the provisions relating to the control of processions and open air meetings. Indeed, I should have mentioned that the provisions relating to open air meetings are far-reaching and much more so than the provisions that apply in England and Wales, because they give to the police the power to prohibit an open air assembly. We are in something of a dilemma because we have been told that the provisions are likely to help the police in maintaining public order in the Province. In the judgment of the leaders of the SDLP the provisions will do just that. Some of us therefore find ourselves in a dilemma. I accept the judgment of the leaders of the SDLP, who, after all, live in the Province day by day.

We have no reservations about Part III, which strengthens the legislation against incitement to hatred. It seems to me that no reasonable person can object to this development because it is only too painfully obvious that this reform is not only necessary but urgent. For far too long agitators whose speeches have been stirring up hatred have escaped prosecution because it could not be proved that there was an intent to stir up hatred. When this order becomes law, as the Minister explained, the offence will be committed without proof of intent. This should give it much greater impact. However, time alone will tell whether Part III will be effective.

From these Benches we urge the Attorney-General not to hesitate to give his consent to bringing proceedings under this part of the order when they are justified on the evidence that is available to him and where witnesses are prepared to give evidence. Meanwhile, this part of the order will bring much satisfaction to the noble Lord, Lord Dunleath, who in January 1986 introduced a Bill which was given a Second Reading in your Lordships' House and which I believe would have achieved the same result.

Finally, I come to Article 27 which repeals the Flags and Emblems (Display) Act (Northern Ireland) 1954. Again, we welcome this article. For the Catholics of Northern Ireland the 1954 Act has been a source of grievance, so its repeal is a desirable development which will bring reassurance to the Catholic community. However, we want to be assured that the Government have fully taken into account the likely Unionist reaction. The Minister has been at pains to argue that the repeal of the Flags and Emblems (Display) Act in practice will not mean any fundamental change in the law. His analysis of the theoretical state of the law is faultless, I am sure, but I am not so sure that the Unionists will be impressed by that analysis. A flag is more than a piece of cloth. It is a centuries old symbol of tribal loyalties, and the Unionists will see the repeal of this Act as being of major importance. We believe that it is of major importance and we hope that the Government have not underestimated the likely reaction and that our worries are groundless.

To sum up, we have serious reservations about some of the provisions of this order. The provisions about which we are worried primarily are the articles which control processions and assemblies. On the other hand, we very much welcome the strengthening of the law against incitement to hatred. We welcome the repeal of the Flags and Emblems (Display) Act 1954. But we hope that this measure will not be counter-productive and that the reactions of the Unionist leaders will be somewhat more reflective than their speeches over the past few weeks have suggested.

8.45 p.m.

Lord Hampton

My Lords, I too must start by paying tribute from these Benches to the late Lord Brookeborough. I did not by any means always agree with the views that he expressed, but I always realised that as one living in Northern Ireland he was in touch with events and people there in a way with which I could not compete. The Times referred to his earthy humour and I found him always friendly and encouraging. He seemed so vital and active that his death at so early an age comes as a particular shock. We shall miss him in our debates and we join in extending our deep sympathy to his widow and family. My noble friend Lord Donaldson particularly wishes to be associated with what I have said about someone who was, for him, a personal friend.

I am grateful to the Minister for introducing this order. There may be some disagreement about it but I do not think that there is anybody in your Lordships' House tonight who thinks other than that this is a sincere attempt by the Government to tackle the difficult problem of maintaining order in the Province, sometimes in very tense circumstances. However, we need to maintain a sense of proportion. I believe that there were over 2,000 marches and parades in Northern Ireland last year and in only seven of them was there any real trouble. Perhaps the Minister can confirm that I have the figures right, because if they are correct they emphasise that the position is less critical than mainlanders often suppose.

We are very conscious of the need to reconcile two freedoms: first, the freedom to be able to walk our streets in peace and to enjoy our homes in quietness; secondly. the freedom, for members of the public individually and in groups, from arbitrariness and injustice, whether imposed by the Government, the police, local authorities or any other form of authority. That is the problem.

The Alliance parties of Great Britain have expressed the desire to avoid differences in the law between Northern Ireland and Great Britain, arguing that if exceptional powers are necessary they should be temporary and under the widest review possible. We are forced to accept that exceptional powers are in many ways still necessary. But I am glad that, for example, the Emergency Provisions Act is under review.

I should be grateful for some further confirmation—if the Minister can give it without having to do so at great length—on the following. First, what are the main differences as planned on matters that we are discussing between the law in Great Britain and that for Northern Ireland? Secondly, have the Government given thought to what might happen in a general election if a Sinn Fein candidate stands?

The main provisions of these amended orders are as follows. Article 3 stipulates the notice that must be given before processions can be held. That is seven days or as soon as is reasonably practicable. The latter words were added in line with our suggestions. Article 4(1)(a) allows for conditions to be placed on the holding of public processions or open-air meetings if they will lead to disorder or serious damage to property or serious disruption to the life of the community. Article 4(1)(b) deals with the intimidation of other people or stopping them from doing something that they have a right to do. We argued that these provisions are too general. Serious disruption or coercion of individuals are new provisions and are unnecessary. The existing definition of serious disorder is adequate. They arc so general as to allow for conditions to be placed on virtually any march.

Article 5 allows for the prohibition of a march if it will cause disorder or disruption or make undue demands on the security forces. Again, the provision about undue demands on security forces allows them a great deal of discretion. Articles 6 and 7 make it an offence to try to break up a march or meeting. Articles 8 to 17, 1 understand—and the noble Lord, Lord Lyell, mentioned this—bring the law on the prevention of incitement to hatred into line with British law, and we welcome that.

Articles 18 to 26 consolidate miscellaneous public order provisions relating to disorderly behaviour, provocative conduct, wearing uniforms, carrying offensive weapons, and so on.

We then come to Article 27. Both the noble Lord, Lord Lyell, the Minister, and the noble Lord, Lord Prys-Davies, have mentioned the repeal of the Rags and Emblems (Display) Act (Northern Ireland) passed by Stormont in 1954. The Act has two provisions. Section 1 makes it an offence to interfere with the display of a union flag on private land; and this we believe is unnecessary. Provisions for offences such as criminal damage and conduct likely to cause a breach of the peace are perfectly adequate. Section 2 empowers a police officer to require the removal of an emblem other than a union flag if he believes that its display is likely to cause a breach of the peace. This, again, is unnecessary as there are other public order powers allowing police officers to remove such emblems.

The Act does not make it illegal to fly the tricolour but it is widely held to be offensive to a large number of people. The Standing Advisory Committee on Human Rights called for the repeal of the Act in its annual report for 1974–75. This perhaps indicates how far from seriously its views are taken. It recently called for three-judge Diplock courts. We wonder whether it will take seven years for these to be introduced as well. With those few comments, in the main we support this order.

Lord Fitt

My Lords, the noble Lord, Lord Lyell, in introducing this order, at the very outset of his remarks made one of the truest statements in relation to the order, to the effect that public order in Northern Ireland is very different from that in other parts of the United Kingdom. Indeed, it is very rarely if ever that a demonstration in England, Scotland or Wales is related to the constitutional position of this country, whereas the vast majority of demonstrations which take place in Northern Ireland are totally related to the constitutional position of Northern Ireland, whether it be on the Unionist side or the Nationalist side.

However, to demonstrate the difficulty, if one looks at the articles in this order, in the atmosphere which prevails in this House, in this country, it would seem eminently reasonable that the Government should introduce legislation to take into account what may happen in the field of public order in a part of the United Kingdom. But what are the realities of it? The reality is that there will be no vote in this House this evening. The reality is that in another place, at the other end of this building, there will be a vote. Of the 16 representatives who are there—the Sinn Fein representative for Belfast, West will not be in attendance—14 will vote against and I predict that the two SDLP representatives, if they are there, will vote for this order or abstain.

Let us recall the civil rights demonstrations which are taken into account in Part IV of this order. In 1968 the civil rights movement began to demonstrate on the streets of Northern Ireland. It led to a very serious backlash from the Unionist population. In 1969, when the then Captain O'Neill—now the noble Lord, Lord O'Neill—called his last election in Northern Ireland the first piece of major legislation that came into the House was a public order Bill. The Nationalist community saw that public order Bill as being directed against them and against the civil rights movement and demonstrations. There were serious disturbances in the old Northern Ireland Parliament in Stormont. The police had to be called to carry out the personnel involved—this was a year before the SDLP was formed—who later went on to constitute the SDLP. They were elected in the February election of 1979. They saw the provisions of that order as being directed at them and at the ideals for which they stood. Every Unionist in the House of Commons at Stormont supported the public order Bill, and it was rejected by the Opposition.

We now seem to have come full circle. We do not have to like the Unionist representatives or the various shades of Unionism in Northern Ireland. But we have to accept that they are the representatives of their constituencies. Indeed, they have had an election since we had an election in the United Kingdom. They had an election in 1986. Their representation was consolidated. They were returned to Parliament with the exception of one seat. They can say in relation to this legislation that they have had a fresher mandate than any other Member sitting in the House of Commons. They were elected in January last year. We are sitting here in the House of Lords, and in another place the same atmosphere will prevail. It will appear in Northern Ireland that we are laying down the law about public order while every representative of the majority community totally rejects it. That is the reality of this type of legislation.

My noble friend Lord Hampton has already referred to the fact that there were over 2,000 marches in Northern Ireland last year—that is the average: between 2,000 and 2,500 marches. There is no other part of the United Kingdom—region or city—which has that number of marches. Indeed, I cannot think of any other country or region in the world which has over 2,000 marches per annum.

One must then ask why do the Northern Irish have to have so many marches? Are they health fanatics? Or, do they like walking in the street? Or, do they like their relatives to see them marching? It is much more dangerous than that. People march in Northern Ireland because of politics; and they wave flags because of politics. When people march in Northern Ireland they are either imposing their tribalism on the other tribe, or the other tribe is marching in defiance of some legislation which they did not like—such as the civil rights movement in Northern Ireland.

Marching in Northern Ireland is a serious business and it has to be treated with a great deal of sensitivity by whoever is to carry out the workings of this particu-lar order. But, 14 public representatives, elected representatives, are coming to the House of Commons tonight to go into the Lobbies to vote against this order. They will not speak because they are boycotting the Chamber itself. But, they claim—and who are we to deny it?—that they are acting with the full authority of their constituents.

I would hope that the SDLP would maintain some form of credibility. If before 1969 they were so opposed to public order, does it not show that it is totally tribal if they go into the Lobbies tonight to support this order? If the order pleases the SDLP, it will not please the Unionists. If it pleases the Unionists, it will not please the majority community.

As has already been said by my noble friend Lord Prys-Davies in 1981 there was a public order act. The provisions of that act have not stopped demonstra-tions nor brought peace any nearer to us in Northern Ireland.

Another very important fact was mentioned by the noble Lord, Lord Hampton. What happens in the forthcoming elections—if there are to be elections this year? Mention has been made of the Irish tricolour and I remember sitting in Stormont listening to the debates which precluded that act going on the statute book. I remember the great passions that were clearly evident in the old Stormont Parliament. The Unionist population in Northern Ireland at that time saw the tricolour of the Irish Republic as being an offensive foreign emblem. Again, every nationalist in Stormont voted against that legislation. Every Unionist supported it. During the existence of that legislation the Unionists used it to their own advantage.

The Minister said tonight that it will not make any change in the law—that it will not really cause any change to be made since 1964. Why was it there, and why has it been allowed to remain on the statute book since 1945? Why was it not taken off the statute book when it was so offensive to the nationalist population in 1972, when this House assumed direct responsibility for Northern Ireland? If it is offensive now in 1987, it was offensive in 1972 and in 1954 when it was first promulgated.

So we have the hypothetical situation where there may be an election this year. The Irish tricolour is regarded by nationalists, and particularly by Sinn Fein, as their emblem. It is regarded by them as their flag and the emblem which shows that their aspiration is to a united Ireland. If one can recall the very onset of the present troubles in Northern Ireland began in the general election of 1964 when the Sinn Fein candidate Liam McMillan had his headquarters in Divis Street and had a tricolour (the political emblem) in the shop window of his election headquarters. The then Mr. Paisley (the now Member for North Antrim) took offence at that flag when someone told him it was there. It was in the heart of the Nationalist area. It was not provocative and it was not being waved or shown to the Unionist population at large. It was in the Catholic area in Divis Street. But, the then Mr. Paisley created a great furore and told the then Minister of Home Affairs in the Stormont Parliament that if that flag was not taken out of the window he would lead 10,000 men into that Catholic ghetto and take it down himself.

The then Minister of Home Affairs, Mr. W. W. B. McConnell, took fright at these threats and instructed the police to go to the Divis Street election headquarters to get the flag. I was standing outside those headquarters that night because I was acting as agent for another candidate in the elections. The police came down in their full armoury and riot gear. They wrecked the windows, broke into the shop and took the tricolour away. That led to a week of rioting in Divis Street, and for the first time in my life I then saw the rioting which we have seen so many times since. The rioting lasted for a week—the police versus the Catholic population of the Falls Road. This situation was occasioned by the flying of a flag in a shop in the Falls Road area—Divis Street.

If there is to be an election this year, Sinn Fein may put up candidates in areas which are highly volatile and hostile because mid-Ulster has its pockets of Unionism, as have Fermanagh, North Antrim and various areas in South Down. Sinn Fein will put forward candidates, even though they may be only token candidates, because Sinn Fein know that they cannot win. I am very glad to see the very unsuccessful attempt to better their wares in the republic in the recent election there.

However, they will put forward candidates. They will say that the identification emblem of our candidate is the tricolour. They will try to traverse the constituency to tell their election story to the various people who may be prepared to listen in that constituency. When going along the road with their tricolours I have absolutely no doubt that they will be met with a great deal of opposition. Then they will say, "The Minister said in the House of Lords and they said in the Commons that the tricolour was unaffected by this recent repeal and if it is our election emblem it should be afforded the same kind of honour"—for want of a better word—"as is given to the Union Jack". It is their election material.

Does anyone who knows Northern Ireland really believe that the provisions of this order will be able to contain such a situation? I am glad to see the provisions in relation to the incitement to hatred legislation, because in 1969 and 1970 I used whatever influence I had to have that legislation put on the statute book in Stormont. However, we have seen in all the years that have elapsed since then that it was all to no avail. It was difficult to prove whether a person was intentionally inciting someone to fear or hatred. The same will happen in respect of this legislation. Well intentioned as it may be, it will be difficult to prove that someone intentionally set out to cause fear or to create hatred.

There are some things that it is just not possible to prove. All the parliamentary draftsmen that ever existed may find the right formula of words but it is so difficult to find the reality that exists behind those words. I could talk for another two hours on this matter. Noble Lords should not provoke me in case I do so. I know exactly what I am talking about. The Government Whip from Somerset says that I have taken 15 minutes.

The legislation has to take into account all the passions of centuries, all the passions that have been created by events which generated from and began in this country. Let us just look at the situation. We are now coming to 1988, 1989 and 1990. Indeed 1988 is the tercentenary of William of Orange taking over the throne in Great Britain. That is where the alleged glorious revolution and bloodless revolution came from. That is where the Orange Order came from. That is where 2,000 of these marches come from. They all began in 1688, and, whereas it may have been the glorious and bloodless revolution over here, it was not over there. All the blood that was spilt was spilt in Ireland.

In 1689 we had the seige of Derry. There will be thousands of Orangemen marching to Derry in 1989, which will be the tercentenary commemorating the 300 years since the Apprentice Boys closed the gates.

Then we come to 1990, which will commemorate the 300 years that have passed since the Battle of the Boyne, in which the Protestants beat the Catholics in Ireland. Are we to contain all those marches and all those passions with this public order legislation?

I agree with my noble friend Lord Blease that the Hiberneans march. How many marches do they have a year? I think that it is about half a dozen, but nobody takes them very seriously. I did not take them seriously when I was living in Northern Ireland. Of over 2,000 marches, 95 per cent. emanate from the Northern Ireland community. This is an order which in this rarified atmosphere seems eminently reasonable. However, we are concerned about how it will be received in Northern Ireland. The Unionist population perceive—that is an English word—this order to be directed at them, just as we perceived the 1969 public order legislation in Northern Ireland to be directed at us.

There are the tribal loyalties, the tribal conflicts and the tribal divisions. All I say to the Minister is that whoever will be in charge of operating the tenets of this order will have to do so with the utmost sensitivity in the very dangerous situation which exists in Northern Ireland this year and which will exist in the years that lie ahead.

9.15 p.m.

Lord Moran

My Lords, I am very sorry indeed that Lord Brookeborough is no longer among us. I was in Northern Ireland the other day and was travelling around Fermanagh. I found that a great many people with whom I spoke were deeply concerned that he was so seriously ill in hospital and it was clear to me that he was held in very high regard. The noble Lord will be greatly missed there and greatly missed in your Lordships' House. Our sympathy goes to his widow and to his family.

One of the effects of the Anglo-Irish Agreement of 1985 and of the secrecy surrounding the deliberations of the Anglo-Irish Conference, is that anything the Government bring forward is seen as a response to pressure from the Republic. Certainly that seems to be true of Article 27 of the order: the repeal of the Flags and Emblems (Display) Act (Northern Ireland) 1954 about which the noble Lord, Lord Fitt. has spoken with great authority. After the rebuff to the Republic on the composition of the Diplock courts, this looks to many people like a sop to the Government of the Republic. Designed perhaps as a bouquet for Mr. Peter Barry, time has turned it into flowers on Mr. Barry's political grave. However, it is bound to be resented by the majority in Northern Ireland.

The timing of this order also seems to me to be unfortunate. On my recent visit I was struck by the fact that, politically, everyone at present seems to be stuck and boxed in. The article in today's Timesabout the uncertainty among Unionists may be right, but I think that the Government are also in a hole. It cannot be satisfactory that Ministers cannot even visit a school or go into a factory without workers possibly downing tools and walking out. I believe that statesmanship requires the Government to make a move to lower tension, remove suspicions, and chart a more constructive course. For example, they could remove the secretariat from its bunker at Maryfield and put it in London or Brussels (there is nothing in the agreement about its location); or they could press the Republic to amend Article 2 of their constitution under which they claim the territory of Northern Ireland. That would be a logical consequence of the agreement. But, no, far from attempting conciliation they produce this order which must inevitably be resented by Unionists. I find that hard to understand.

As regards the substance of the order, I recognise that a good deal of it follows the Public Order Act 1986 applying to England and Wales. That Act was considered at length in your Lordships' House and in another place, and important amendments were made to it. I find it strange therefore that this order, applying to another part of the United Kingdom. should differ so much from the Act. It seems to me to ignore some of the amendments to the Act made by Parliament. For example, the Act was amended so that restrictions on public processions apply only to those intending to demonstrate support for or opposition to a view or action, to publicise a cause or campaign or to commemorate an event. (That appears in Section 11).

However, the order is not so restricted. As it stands, it seems to me that the most innocent processions—school crocodiles or wedding processions—could be covered by the order unless they are exempted by a purely administrative order. The statutory powers given to the police seem to me to be much more extensive and draconian, and the restrictions on civil liberties much more severe. The penalties are much tougher even for the same offence. As the noble Lord, Lord Prys-Davies, pointed out, someone taking part in a procession in England and failing to comply with a condition laid down is subject to a limited fine. However, someone doing exactly the same thing in Northern Ireland will, under this order, be liable to be imprisoned. Surely, it is quite wrong that someone committing an offence in Ballynahinch should be liable to a much more severe penalty than someone committing the same offence in Barnstaple. I should like to know how the Government seek to justify that discrepancy between two parts of the United Kingdom.

There is then the question of bands, which is not covered in the 1986 Act. They are defined in the order as: a group of two or more persons who carry for the purpose of playing or sounding, or engage in the playing or sounding of, musical or other instruments". It seems to me that that could cover a barrel organ and an aged violinist. I should like to ask the Minister whether it is correct, as I have heard, that a group of children walking along the street with a couple of tin whistles would, under this order, be committing at least two offences: failing to give notice of their procession and knowingly taking part in a public procession as a member of a non-registered band, for both of which they could be imprisoned?

I should also like to ask the Minister why in Article 12, which makes broadcasting threatening or abusive images or sounds an offence, the BBC and the IBA are exempted? I know that they were so exempted in the Act but why should they be put above the law in this way? An offence is surely an offence committed by whomever it might be.

I think there is much that is questionable in the order. However, as has been pointed out, under the procedure which the Government have chosen we cannot amend the order, and the Government can ignore the detailed arguments and changes made to the Public Order Act. All that we can do is to support or oppose it, but it is an unsatisfactory measure, severely curtailing civil rights in one part of the United Kingdom just because the Government believe that some people there have made a nuisance of themselves. I think that it is born of impatience—never a good guide to policy.

Then there is the repeal of the Flags and Emblems (Display) Act (Northern Ireland) 1954 after 33 years.

I do not think I can add anything to what the noble Lord, Lord Fitt, said on that. I suppose it means that the police will no longer be able to intervene under the previous Act to prevent the flaunting in a provocative way of the Irish tricolour. As the flag of the Republic it is entitled to respect; but in Northern Ireland it represents the flag of a state claiming the territory of Northern Ireland as its own. Flying it therefore is seen as a challenge to the present status of Northern as part of the United Kingdom.

What will happen? I suppose that in many Catholic housing estates the IRA will, by intimidation, enforce the flying of the tricolour which will accentuate differences between the minority and the majority and be provocative to Unionists, and then what price peace, stability and reconciliation, the objectives of the Anglo Irish Agreement? This provision seems to me to go flat against those objectives.

All in all therefore this seems to me an untimely and unhelpful order which I hope the Government will take back and amend in the light of what has been said in your Lordships' House. But I have a more fundamental objection. I think that the Government ought not to spend time on unreal legislation on flags, processions, and penny whistles. On public order in Northern Ireland they should concentrate on the real threat, which is that of murder, bombing and mortaring by the IRA.

I have just visited the border area in Fermanagh. I saw RUC stations being turned into mini-fortresses. I met some of our soldiers and members of the UDR. Here I should like to pay a tribute to the members of the RUC and the UDR in Northern Ireland who are acting with great courage, who are being even-handed between the two communities, and doing a tremendously good job under extraordinarily difficult circumstances. They deserve our fullest support.

I also met some of those who had had members of their families murdered. I met a boy who had seen his father, who had been cutting rushes in the field, shot in the back of the head. I met a schoolmistress who said that two-thirds of the children in her class had lost fathers, uncles, or first cousins. It seemed to me shocking that this state of affairs should be allowed to continue in a part of the United Kingdom while known IRA gunmen walk about quite openly.

The people in this part of the United Kingdom are not being adequately protected. The murderers are seldom caught. This state of affairs would not be tolerated in most of the countries that I have lived in. It ought not to be tolerated in ours. The present level of security in border areas is not acceptable. The Government ought to address themselves first and foremost to this public order problem. I believe that they have improved the situation in some areas, for example around Crossmaglen. They should do so elsewhere as well. I hope that the Minister will be able to tell us that much more resolute steps will be taken to provide proper security throughout Northern Ireland.

The Earl of Erne

My Lords, I should like to be associated with the remarks and comments that have been made about my late noble friend and neighbour Lord Brookeborough. We are all extremely sorry that he is not here this evening, and our deepest sympathy goes to his family.

I should like to say that I am delighted to hear of any noble Lords who takes the trouble to visit our troubled country, and especially my county of Fermanagh. It is essential that people visit our country in order to understand our problems. One of the problems that faces us all today is that so few people really understand.

One is deeply grateful when one hears of people taking the trouble not only to go there but to travel, to visit the people who have been stricken and the families that have suffered, and to see and experience the tremendous work that is being done by the RUC, the UDR and the other military personnel there.

Lord Blease

My Lords, I share with the Minister and with other noble Lords the shock and the sadness of the loss of Lord Brookeborough. I wish to join in the tributes and the words in token of his work in this House and the memory that he has left of his staunchness, his outright honesty and the forthrightness with which he dealt with those things in which he believed and for which he stood. I wish to be associated with the remarks of the Minister and other noble Lords in the words of sympathy to his lady, Rosemary, and his family at this time.

It will be no surprise to the House if I say that the proposed public order legislation has given rise to much bitter controversy in Northern Ireland. Public pronouncements have been made by Northern Ireland Members of Parliament and others about concerted plans for a campaign of opposition hostile to the implementation of the proposed legislation. One Northern Ireland Member of Parliament stated on 2nd March: A campaign of civil disobedience will be timed to coincide with the introduction of the Public Order legislation, and much of it will defy that Bill. The full scale civil disobedience campaign will include the withholding of all licence payments and rates for bills which are due to be issued in April and May. The history of marches and public meetings in Northern Ireland records many instances of innocent and peaceable citizens having been caught up and ensnared by marches and public meetings which turned into displays of provocative sectarian conflict and political hatred. Tragically, on some such occasions recently the outcome has been serious injury and death as well as the wilful destruction of homes and public property with consequential human suffering and loss of employment. I believe that in Northern Ireland, as here in Great Britain, the vast majority of citizens wish to uphold the rights of peaceful demonstration and the freedom to protest and to give expression to public interest in matters of public concern as well as the freedom to participate in the organisation of traditional parades and public meetings. At the same time, I believe it is firmly held that there is a need for the public good that such parades and meetings should be under agreed rules for the maintenance of law and order.

If we approve legislation which is considered necessary for good government and the maintenance of law and order, surely we must consider also the practical implementation of such legislation. That is the note which I try to sound in this House this evening—the practical implementation and the realities of the situation in Northern Ireland which have already been mentioned in this House.

The consequences of such widespread and planned opposition to law and order measures cannot be lightly set aside, notwithstanding the stated principles and the urgency of the proposed legislation. Surely we must not only be convinced of the rightness and equity of the legislation in terms of parliamentary democracy but must, of necessity, be assured that the proposed measures are workable and are within the principal capacity and the existing resources of the law and order services to act upon with impunity.

There can be no doubt that this order we are discussing is a major piece of substantive primary legislation. Among the matters the order deals with are three vital and highly emotive issues which are deep-rooted in the political and community life of the Northern Ireland people. They have already been mentioned several times in your Lordships' House and I will repeat them so that it will be understood I am referring to the same issues. They are: the repeal of the Flags and Emblems Act (Northern Ireland), which was enacted by the Northern Ireland Stormont Parliament in 1954; the amending of the incitement to hatred legislation; and changes in the laws concerned with the control of marches and open-air meetings.

I share the concern expressed by many in Northern Ireland and in this House that the six-week consultative period (which included the Christmas holiday period) was totally inadequate to allow for careful debate and thoughtful discussion by public bodies, organisations and individuals who might be directly or indirectly concerned about this legislation.

Although the Government and the Northern Ireland Office may not be totally to blame for the lack of suitable parliamentary scrutiny and debate in connection with this order, I am of the opinion that the Government ought to have given greater thought and to have displayed a more sensitive awareness of the parliamentary and public presentation of this difficult order. All we have had has been an explanatory document, the draft proposals and ministerial statements made outside the precincts of Westminster, the Parliament of the United Kingdom.

In this connection there are at least three measures which I believe could have helped, had they been subjected to a greater input from a wider public debate before the parliamentary procedures were set in motion. The first concerns a measure to amend the incitement to hatred laws. In this regard the Secretary of State for Northern Ireland, the right honourable Tom King, was reported in the Belfast Telegraph of 10th February 1987 as stating: The Secretary of State, Mr. Tom King, today suggested that the Government might have to consider further new curbs on incitement to hatred in Northern Ireland after its proposed Public Order legislation came into force. Mr. King was responding to the annual report of the Standing Advisory Commission on Human Rights, which has argued that wider issues are involved. In a letter to the commission chairman, Mr. James O'Hara, the Secretary of State said the Government intended to bring in its controversial Public Order measure before Parliament shortly. However, he added: 'This is, however, an area of law which raises particular human rights issues, including relations between citizens as well as between citizens and the State, and is one in which further evolution of the law can, by no means, be ruled out in the longer term'. That was the Secretary of State's reaction to the body which has been set up and established by an Act of this United Kingdom Parliament to inquire into and scrutinise the laws in relation to the incitement to hatred and human rights matters in Northern Ireland.

In view of these remarks by Mr. King, may I ask the Minister: is it not unwise to proceed with this legislation and to replace an unworkable Act by introducing another piece of flawed legislation which appears at best to be an interim stage measure? The human rights commission has already indicated that it is not completely satisfied with its examination of the legislation that has been put forward. It is on record in its annual report that it will require a considerably longer time to go into the details of the legislation.

My second question is about the concern and reservations expressed by leading media representatives over the proposals in Article 10(2) on page 9 of the order. This deals with the burden of proof in cases of intent to stir up hatred and arouse fears. The Minister has already referred to the concern of the press. I should like to quote from the Belfast Telegraph editorial of 11th February 1987. It reads: Just as it was impossible to prove 'intention' to cause a breach of the peace by words that could be held to constitute incitement under the present Act, the new Bill could encroach on the duty of the media to report public statements …Every doubtful statement, by every politician, journalist or letter-writer, would have to be carefully scrutinised for its inflammatory content, and clearly a lot of subjective judgment based on the likely readership or audience would be involved. One person's incitement is another's robust statement of opinion". That is the dilemma with which we are faced when we try to enforce regulatory powers on the media. Perhaps the Minister will wish to reassure responsible journalists and media representatives that the proposed legislation will enable them to carry out their work with impartiality and objectivity, without feelings of restriction by the order, and will not hinder them.

I further ask the Minister whether he agrees that the purpose of a law which attempts to restrict the accepted standards of freedom should be clearly defined. It is apparent that this part of the order is not clear to experienced and responsible journalists. I am advised that the words in the order, having regard to all the circumstances", are not clear and do not give the necessary safeguards.

My third concern is over the practical role and functions of the police in connection with the repeal of the Flags and Emblems (Display) Act (Northern Ireland). The Northern Ireland Secretary of State, Mr. King, in a statement issued on 19th February 1987 about the draft order said this. I do not wish at this time to quote the statement in full because the Minister has already repeated it. Is the noble Lord putting his hand up to prevent my going on? I intend to say what I have to say on this occasion. I am trying to restrict my remarks but, as my noble friend Lord Fitt and others have indicated, this is a very important issue so far as Northern Ireland is concerned. I should not be standing up to my responsibilities if I flagged at this stage in putting forward my views. The Minister is well aware of the need for a debate on this order.

As I said, I shall not repeat the whole statement by Mr. King on 19th February 1987. It was made outside Parliament, and so I welcome the fact that it has been put on the official record by the Minister. The only part to which I shall refer reads: The police will also retain their general duty under common law to take whatever steps are necessary to prevent a breach of the peace arising from the provocative display of any flag or emblem". Tribute has already been paid this evening in your Lordships' House to the security forces and particu-larly to the RUC for maintaining peace and order in Northern Ireland. It will therefore not be necessary for me to go into detail. The RUC is at the sharp end of the law and order services in the Province. Your Lordships have on several occasions expressed commendation and praise for the RUC in dealing with ugly and vicious deeds of terrorism and in maintaining the principles and the impartiality of the administration of the rule of law.

On many occasions recently members of the RUC have been trapped in the middle ground and have been the target of rival rioting groups, on duty, off duty and in their homes. We have an obligation in this Parliament to ensure that if we enact laws, we also give the necessary measures for enforcing them. I believe that that was the tenor of the remarks made by the noble Lord, Lord Moran. It is useless to put forward laws unless they can be implemented.

I hope that the Minister will therefore confirm that the statement by Mr. King embodies the intention of the order. He has already repeated the statement and I am sure that that was the reason for it. I also ask whether the Minister can explain how in real terms it is intended that the RUC will be able to prevent a breach of the peace, as was referred to in the statement, in circumstances such as the defiance announced by Northern Ireland Members of Parliament and others. Will the general duties of the police, as referred to in the statement, be made easier or more difficult by the role and function of the RUC under the order? Perhaps I may repeat that. I believe that the Minister did not hear.

Lord Lyell

I did hear.

Lord Blease

I look forward with interest to the reply.

The proposed legislation raises many issues and questions about community protest, public interest, industrial action by trade unions, the registration of bans and the discretion available to be exercised by the police. I am unhappy about this order. I believe the Government have missed an opportunity to introduce helpful, suitable and workable public order measures by their insensitive presentation and by the parliamentary procedures which they have adopted on this occasion. In my opinion the order will create more problems than it resolves, not only for the law-abiding citizens of Northern Ireland and the police but also for the Government and for this Parliament. I hope that I am wrong. I shall be happy if the order succeeds and if I am proved wrong. For the present, my conscience and my judgment prevent me indicating support for this order.

9.45 p.m.

Lord Lyell

My Lords, I too wish to reiterate everything that has been said in tribute to the late Lord Brookeborough and to associate myself with what has been said by your Lordships. I am sure that it will go on record that all noble Lords wish to send their sympathy to his wife and his family. They have shown much courage and they helped the late Lord Brookeborough in so much that he did in Northern Ireland.

The noble Lord, Lord Prys-Davies, started with a major review of the order we have before us this evening. The first matter the noble Lord raised was that of consultation by the Government with various people in Northern Ireland. Successive governments have devised arrangements for wide consultation before orders such as the one we have before us this evening are made. I hope I can assure the noble Lords, Lord Prys-Davies and Lord Blease, that six weeks is the normal consultation period for orders, many of which are as controversial as or even more controversial than the one we are considering this evening. I confirm once again that proposals for draft orders, including the one which we have before us, are sent to the political parties in Northern Ireland.

The Northern Ireland Committee in another place can consider proposals and this allows all of us in your Lordships' House to hear the views of honourable Members of another place, and if appropriate we would be able to amend the draft order. With regard to consultation and insensitivity—and this is relevant to the concluding remarks of the noble Lord, Lord Blease—the Government cannot be responsible if elected representatives from Northern Ireland do not take advantage of the procedure of the Northern Ireland Committee in another place. I would go further and say that if all draft orders concerning Northern Ireland legislation took the form of a Bill, an impossible burden would be put on your Lordships' House and indeed on another place. I speak as a Scotsman and also as a proud representative of Northern Ireland.

Lord Blease

My Lords, will the noble Lord give way?

Lord Lyell

My Lords, I shall come to the noble Lord, Lord Blease, in a moment. He had a fair crack of the whip and I shall come to him after I have dealt with one or two other points. If the noble Lord can intervene briefly, I shall give way.

Lord Blease

My Lords, I indicated in my remarks that I made allowance for the absence from debate in another place of the Members of Parliament for Northern Ireland. I said that for that reason the Government were not totally to blame, but that does not exclude the responsibility in other quarters.

Lord Lyell

My Lords, the noble Lord is only reiterating what he said earlier. I believe that we cannot be responsible. I shall not repeat what I have already said. I hope the noble Lord will accept it. Our positions are fixed. The noble Lord should take that point, and I think he supports us; I hope so, anyhow.

The noble Lord, Lord Prys-Davies, suggested that the consultations were rushed. Public order issues in Northern Ireland have been in the public domain at least since 1981, when the chief constable in his annual report first raised his concerns about the high level of policing required for parades. He developed this concern in all subsequent annual reports right up to 1984, when he pointed out that the whole question of parades and demonstrations presented what he called a challenge which had to be faced by the whole community in Northern Ireland. It was against this background of five years of concern that the Government published their draft proposal and the explanatory document more than three months ago. This invited representations and comments from, among others, the constitutional political parties. I regret to say that the Ulster Unionist Party and the Democratic Unionist Party chose not to respond.

The noble Lord, Lord Prys-Davies, also referred to the press release that was issued by my right honourable friend in December last year. If the noble Lord glances at it he will see that it clearly set out the intention behind the order before us this evening and above all set out its main provisions. Paragraph 3 of the press notice, which was quoted by my right honourable friend the Secretary of State, said that the Government believed that it was right that the principles underlying public order legislation should be uniform throughout the United Kingdom, although local circumstances in Northern Ireland may require detailed provisions that are different. That is fairly clear and sets out the intentions of the Government on public order.

The noble Lord, Lord Prys-Davies, referred to conduct which may be criminal in Northern Ireland but not in England and Wales. There would be a difference between the 1986 Act and the order before us this evening.

The legislation on processions in the draft order is closer to the Public Order Act 1986 than the present Northern Ireland law, which was implemented in 1971. Differences do occur and we hope they are minor differences and that the noble Lord will accept that this is a necessary reflection of the different situation regarding public order, marches, processions, open air meetings and the like in Northern Ireland.

The noble Lord also raised the question of the statements which had been made by the honourable Member for North Antrim in another place. He referred to the legislation before us this evening and before another place for use against opponents of the Anglo-Irish Agreement. Certainly the legislation is not intended in any way to interfere with lawful and peaceful demonstrations whether against the Anglo-Irish Agreement or any other cause. In all these cases and indeed in the legislation before us this evening, it is for the police and the courts—not the Government—to determine whether any particular demonstration infringes the law.

The noble Lord, Lord Prys-Davies, raised the question of human rights and also I think the National Council for Civil Liberties. They had suggested that Article 5 of the order clashed with or contravened the European Convention on Human Rights, especially Article 11. If we look at that article we see that it specifically recognises that restrictions may or might have to be placed on the exercise of the right of peaceful assembly. I think that the noble Lords. Lord Fitt and Lord Prys-Davies, would accept that such restrictions may be necessary in a democratic society in the interests of national security or public safety or for the prevention of disorder or crime. I think that point will register with the noble Lords and also the point regarding the protection or of health or morals and the protection of the rights and freedoms of others.

I do believe, and I am sure your Lordships will agree, that the provisions of the draft order—in particular Article 5—are within the terms of this particular article of the convention. The noble Lord, Lord Prys-Davies, raised the question of the Flags and Emblems Act and we are extremely grateful for his support for the repeal and removal of this legislation. We are very grateful for the tributes and the comments of the noble Lord, Lord Hampton, and the thought which has gone into his speech on the particular order before us this evening. The noble Lord is indeed quite correct about the number of marches. I understand there were over 2,000 marches in 1986, but the noble Lord's mathematics were definitely in the right direction. It was 70 rather than seven marches that gave problems and the noble Lord is quite correct in that particular aspect. The Royal Ulster Constabulary did consider it necessary to reroute 10 parades and my right honourable friend the Secretary of State did ban a proposed parade by the Apprentice Boys through Portadown on Easter Monday. This was not a traditional parade and it was the chief constable's view that the route selected was deliberately provocative and that any parade there would be a serious threat to public order. This, my Lords, is one parade or march out of 2,000 which was banned during 1986.

The noble Lord, Lord Prys-Davies, referred to participants and organisers who might be liable to commit an offence. He also raised the question of the penalty not just being a fine. It could also be imprisonment. I think that point was touched on by the noble Lord, Lord Moran. These provisions in Part II follow the 1981 order. In the view of the Government they remain necessary if the police are to be able to deal effectively with potential public disorder. That is what is at the back of our minds all the time, although I take the thoughts of the noble Lord, Lord Blease, and other noble Lords who have spoken as to the practical effects of these aspects.

The noble Lord, Lord Hampton, also asked about Diplock courts. I do not think I shall go along that road too far this evening, if the noble Lord will forgive me. I shall write to him if we can find any tripping points on that apsect.

The noble Lord, Lord Fitt, has clearly studied this order and he took us right back to some very interesting aspects of 1964 and 1969. We always find him most interesting. Unfortunately, I do not have my copy of the Cameron report before me this evening but doubtless there will be many other points of Northern Ireland history that the noble Lord can describe. He spoke about these dates in history. I am sure he knows of 1608. I do not know whether marches were going strong 380 years ago, but that, too, is a critical date in Northern Ireland's history.

The noble Lord pointed out that public order matters in Northern Ireland are different and he referred to the constitutional problem. He is quite correct. He stressed that the wheel had turned full circle, with anger by nationalists in, I think, 1969 and rage now by Unionists. Perhaps that goes to prove that governments in the United Kingdom cannot please everybody all the time.

The noble Lord referred to the Flags and Emblems (Display) Act (Northern Ireland) 1954 and asked why this was not taken off the statute book in 1972. Why he chose 1972 and not 1969 I am not too clear.

Lord Fitt

It was the abolition of Stormont.

Lord Lyell

I see. That is one interesting date in the recent history of Ulster events.

The Act was redundant. There have been no prosecutions under it since at least 1969 and I am advised that no records are available for earlier years. Therefore, for all the fire and fury that may have been emitted in 1954 or in earlier days—perhaps even after that in 1964—the Act has not been used in any court. Therefore, it was clearly redundant and I hope your Lordships will accept that the draft order provides an appropriate legislative vehicle for public order offences that are connected with the waving of banners, emblems or whatever else. Certainly my fertile mind, and I am sure those of your Lordships, can go a long way from tricolours or anything else.

The noble Lord referred to the 1964 disorder provoked by Sinn Fein. I stress that the repeal of the Flags and Emblems Act will make no difference to the fact that the Royal Ulster Constabulary will have to make difficult judgments on its own as to whether the display of a particular flag or emblem—and that could by anything, could it not?—

Lord Fitt

My Lords—

10 p.m.

Lord Lyell

May I just finish this sentence? There are difficult judgments as to whether the display of a particular flag or emblem is likely to give rise to public disorder or whether those opposing the display of a particular flag or emblem are creating a breach of the peace. Therefore, there are the fliers of the flag and the opposers. The noble Lord, Lord Fitt, nods his head. The police must try to reach perhaps not the judgment of Solomon but some judgment. It will be difficult. We hope that the order will give them some indication and help.

The noble Lord asked about inflammatory statements and hatred. He will see that in Part III, paragraph 1(a) refers to intent and paragraph (b) to, having regard to all the circumstances". I think that those two sub-paragraphs cover the intention to use inflammatory words that people know perfectly well, especially in the context of Northern Ireland, will stir up hatred or fear or what everyone knows those two concepts to be. I think that Part III makes it fairly clear that people cannot come before the courts and skate away saying that they did not know, especially in Northern Ireland. I think the noble Lord will accept that.

Once again we are grateful to the noble Lord, Lord Moran, for his tribute and I also add a note of gratitude. As he told your Lordships, he made a personal visit to Northern Ireland and his remarks this evening are very much the result of that visit. I hope that I quote him correctly in recalling that he said that this order must be resented by Unionists. That may be the view of some—perhaps many—Unionists but I ask the noble Lord and the Unionists to study what Part II of the order does that is not done already in almost all cases of responsible marches. Much noise and strident comment will be uttered by those who wish to stir up disorder and trouble because they neither care for Part II of this order nor appreciate it. However, I assure the House that Part II confirms much of what is already being done in the field of public order so far as processions and public meetings are concerned.

The noble Lord, Lord Moran, referred to civil liberties. Perhaps he will cast his mind back to the last occasion on which we discussed public order and emergency provisions, I think when we were renewing the emergency provisions order. We spoke about civil liberties. We heard what the noble Lord, Lord Fitt, had to say about civil liberties in Northern Ireland and how concessions to one section of the community are regarded as a flagrant breach of civil liberties. That phrase has very wide terms of reference in Northern Ireland.

The noble Lord, Lord Moran, also referred to the differences in laws between Northern Ireland and other parts of Great Britain, particularly England and Wales, and the great gap between the Public Order Act 1986 and the order that is before us this evening. I shall not go into the differences that existed in Scotland in 1980 and 1981 as regards conduct at events such as football matches. For four years in Scotland the law concerning behaviour at a specified event was completely different from that governing what one could or could not do in England. We hope that the differences between Northern Ireland and other parts of Great Britain are at least being narrowed.

The noble Lord raised the question of bands. Article 6(2)(b) provides that any regulations may exempt specified classes or descriptions of bands. In any event, no such regulations have been introduced, nor are they planned.

As regards the point which was raised by the noble Lord, Lord Moran, concerning the Flags and Emblems (Display) Act, the Royal Ulster Constabulary will not be precluded from dealing with provocative displays of the Irish tricolour nor indeed any other flag or emblem. As the noble Lord will be aware, flag waving can be provocative and annoying and where it is provocative or causes a breach of the peace the Royal Ulster Constabulary already have sufficient common law powers to deal with the matter.

The noble Lord raised the question of the BBC and the IBA being exempt from offences of incitement. I am advised that the BBC is governed by its charter and the IBA is subject to the Broadcasting Act 1981. Both measures impose duties on the broadcasting authorities which, among other things, prevent them from broadcasting any material that is likely to lead to crime. I understand that the phrase, "likely to lead to crime", is sufficient for exemption. It seems that it is not necessary for them to be made the subject of criminal offences in the order that we have before us this evening, since the IBA is caught by the Broadcasting Act and the BBC by the charter.

We were grateful for the tribute of the noble Earl, Lord Erne, from County Fermanagh. The noble Earl, Lord Erne, and Lord Brookeborough, were close neighbours and friends. The tribute this evening from my noble friend is all the more helpful and kind. We were also grateful for the tribute of the noble Lord, Lord Blease, to Lord Brookeborough.

The noble Lord mentioned the question of agreed rules—at least that is what I wrote down. I hope that he will accept that Part II of the order is codifying the agreed rules of what I am sure he would accept are the responsible marchers. Part II seeks to catch, as I was pointing out to the noble Lord, Lord Moran, the wilder elements who wish to stir up trouble.

With regard to the report of the Standing Advisory Committee on Human Rights, and the response of my right honourable friend the Secretary of State, we are satisfied that Part III of the order before us this evening makes provisions which are fully appropriate to the present situation. The standing advisory committee commented that the draft legislation raised wider issues. My right honourable friend's letter to them looked forward to receiving further advice from them. It sought not to close the door on the possibility of further changes to the law.

The noble Lord also reflected on the worries of responsible journalists. I mentioned in my opening remarks that responsible reporting would be protected. However, your Lordships would not expect journalists to be given a blanket immunity. As in almost all the measures before us this evening it will be a matter for the courts to decide whether in all the circumstances their reporting is likely or intended to stir up hatred or arouse fear. I think that the noble Lord will accept that in the context of Northern Ireland intent may be one thing but knowledge of a course of action, and the probability of what it might do, is certainly very clear, especially to journalists.

I hope that I have covered Article 10—the accepted standards of freedom. This is always a matter for the courts. I hope that I have covered the matter of flags and emblems, mentioned by the noble Lord, Lord Blease. I believe that the Royal Ulster Constabulary will see the order before us this evening as being a realistic attempt to bring public order legislation more closely in line with that in Great Britain, and, above all, that it will be treated in a realistic manner.

As I stressed in my earlier remarks, and I hope throughout my later remarks, legislation in the field of public order and in particular in Northern Ireland is a sensitive matter. I have sought—and I stress that word—to explain and justify a number of points on the draft order which were raised by noble Lords. I hope that I have gone some way in satisfying noble Lords who asked questions that the draft order deals adequately with these sensitive matters and that it will be in the long-term interests of all the people in Northern Ireland. I hope that I have said enough. I commend the draft order to the House.

On Question, Motion agreed to.