§ 4.2 p.m.
§ The Minister of State for Northern Ireland (Mr. William van Straubenzee)
I beg to move,That the Detention of Terrorists (Northern Ireland) Order 1972 (S.I. 1972, No. 1632), a copy of which was laid before this House on 6th November, be approved.I think it will be within the general knowledge of the House that since the prorogation of Stormont and the assumption of direct rule, the Government have been reviewing the question of internment and detention under the Special Powers Act. I think I speak for both sides of the House when I say that all of us would wish to see internment done away with. It is a measure which has many repugnant features. But if it is to cease, and if it is to cease to be part of the law of Northern Ireland, I respectfully suggest that we have to ask ourselves whether any other special measures need to be introduced in its place.
I think the House will know, but if not I should like to make clear, that during the period in question, that is to say, since the assumption of direct rule, my right hon. Friend has not signed any new internment order; but he has been forced reluctantly to the conclusion that the normal machinery of the courts is not in itself adequate to deal with the problem of terrorism—
§ Mr. van Straubenzee
The hon. Lady will forgive me if I do not give way. I must at least get started.
The Government therefore took steps to deal with the problem. First, a commission was established under the chairmanship of Lord Diplock with terms of reference to consider what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations. Second, as an interim measure, until Lord Diplock reported and his recommendations could be acted upon, the measures in this order have been adopted subject to the approval of Parliament. It might be helpful if I added that my right hon. Friend the Secretary of 46 State is also undertaking a study of those parts of the Special Powers Act which appear to fall outside the terms of reference of the Diplock Commission.
§ Miss Devlin
I believe the hon. Gentleman said in opening that the Secretary of State for Northern Ireland had not signed any internment orders since taking office. While the House may well greet that with some pleasure, perhaps he could inform us on two points. Since the right hon. Gentleman has not served any internment orders, how many detention orders has he served? What is the fundamental difference between the present detention order and the former internment order?
§ Mr. van Straubenzee
The answer to the first part of the hon. Lady's question is that 45 interim custody orders have been signed since 7th November. Since she smiles gently at that, perhaps she will wait while I continue with my speech and I shall attempt to give her the answer to the second part of her question, which is a very reasonable answer. I hope that I shall be able to give her an answer not only to satisfy her but to satisfy the very large number of other people.
§ Mr. van Straubenzee
I feel the hon. Lady is being somewhat unreasonable with the House. I have already given way. I must continue with my speech. I have given her the factual answer to the question she asked. I think I have done what was required.
This order gives effect to the decision of Her Majesty's Government to end internment and detention by the Executive. Article 12 revokes the appropriate parts of the regulations made under the Special Powers Act. In other words, internment as such is no more. The remaining provisions of the order are an attempt to provide a more acceptable process of dealing with those terrorists who cannot be brought before the courts. I shall say a few more words on that point in a moment.
Let me first say something about the philosophy which underlies the order. Reluctantly, admittedly, we have felt bound to conclude that we could not rely on the normal judicial procedure in Northern Ireland, knowing that in the 47 circumstances terrorist intimidation—particularly those who organise but who do not themselves take part in terrorism—makes a mockery of the law and that many known terrorists will remain at liberty. The Government had therefore to put first and foremost the protection of the innocent population against acts of terrorism, devising a new but, so far as we were able, fair system to deal with the situation.
I have to make it clear that the problem we face is that of intimidation. I do not think I need to elaborate on its existence and upon its effect. Members in all parts of the House will have read of persons brutally murdered in front of their families, of young people, young women, being tarred and feathered, and of other sadistic practices; and they will realise only too well the nature of the person one is dealing with and the risks incurred in giving evidence against the perpetrators of terrorism in Northern Ireland. Nor indeed, as the House will note with regret, is the judiciary exempt. There is also the problem of persons who organise and direct terrorist activities but who are careful to keep blood off their own hands.
These are the problems that face us in the current situation. In practical terms, it means that civilian witnesses are often not prepared to come forward if there is any likelihood that their identity may be disclosed. Yet it is evidence from civilian witnesses that is essential if terrorism is to be curbed, and the persons most likely to have such evidence are exactly those living in the area frequented by terrorists; hence they are the persons most at risk from intimidation. To encourage such people to give evidence, one can try to persuade them to appear in private before an independent commissioner. Alternatively, the normal rules of evidence can be changed to permit hearsay evidence, so that the witness does not have to appear at the hearing.
Finally, I must mention information from intelligence sources. Frankly, it would not be in the public interest to disclose details of these sources, although obviously they may often provide firsthand evidence of terrorism.
These, then, however distasteful, are the reasons for the order. In other words, internment by the Executive has come to 48 an end but special measures are still necessary. In the order we have tried to achieve maximum safeguards for a person alleged to have been concerned in terrorism commensurate with the protection of innocent lives.
§ Mr. Arthur Latham (Paddington, North)
Will the hon. Gentleman elaborate upon his claim that internment by the Executive has come to an end? Is it not that some kind of body pretending, purporting or appearing to have some judicial connections will function none the less as part of the Executive and outside the normal judicial processes? Is it true that internment by the Executive has ended?
§ Mr. van Straubenzee
With respect to the hon. Gentleman, I think that he is not being fair to the commissioners when describing them as part of the Executive. I am well aware of the hon. Gentleman's deep anxiety on this matter, which, in general, I hope he will understand, is widely shared. There is a very significant and important difference between an executive act by a Minister, however well intentioned, on the one hand, and a judicial process by commissioners, on the other hand.
I have never pleaded it as a perfect solution. I have made clear that it is an interim solution, pending receiving and acting upon whatever recommendations Lord Diplock may make. But there is a significant difference and I am entitled to make that claim to the hon. Gentleman and to others.
I was coming to the order. As the House will see, Article 4 allows the Secretary of State to make interim custody orders to detain a person for a maximum period of 28 days. If a person suspected of engaging in terrorist activities is arrested by the security forces, the security forces, if they have sufficient evidence, or the chief constable, will charge him and bring him before the normal courts of law. It is a very important point that where this can be done it is the practice so to do, so there is no change in that. If, however, in the view of the chief constable, the person has committed or attempted to commit terrorist offences but the evidence, for the sort of reasons I have given, cannot be adduced in a normal court, then the chief constable may apply for an interim 49 custody order. If the Secretary of State agrees, the order will be made.
As one whose unpleasant duty it has been to sign more than one interim custody order, I should like to say that it is certainly no automatic process, but if it is so made the chief constable then has a maximum of 28 days in which to collate the evidence and refer the person to a commissioner. If the person is so referred, he remains in custody until the commissioner has determined his case. If he is not so referred within the period of 28 days, he must be freed. Under Article 9 provision is made for the Secretary of State to order his release at any time within this period.
§ Mr. Dick Douglas (Clackmannan and East Stirlingshire)
The incursion of the chief constable into this procedure might cause a great deal of concern. What judicial or legal advice is available to chief constables in Northern Ireland in order that they may judge whether to apply for such an order?
§ Mr. van Straubenzee
The chief constable would he acting in the ordinary discharge of his duty, as in other cases, but the hon. Gentleman will realise that he has to apply to the Secretary of State for this interim custody order, and it is there that there is a very considerable safeguard. Furthermore, the chief constable, like the rest of us, knows the provisions in the order.
Incidentally, I have been informed by my right hon. and learned Friend the Attorney-General that I made a foolish slip earlier, which I had better correct. It is the Director of Public Prosecutions who would have initiated the proceedings before a court. I think that I said it would be the security forces, and that I must put right.
§ Sir Elwyn Jones (West Ham, South)
Will the Director of Public Prosecutions also be responsible for the conduct of proceedings before the commissioner and the appeal tribunal? This is a matter to which we on the Opposition side of the House attach very great importance.
§ Mr. van Straubenzee
No. If the right hon. and learned Gentleman wishes to put further points on the legal side, he will have the advantage of my right hon. and learned Friend the Attorney-General, who will seek to intervene at the end of the debate.
50 If a person is referred to a commissioner, the schedule provides that not less than three days before the hearing the respondent shall be served with a statement in writing as to the nature of the terrorist activities which are to be the subject of the inquiry. It is fair to say that this is a substantial improvement on the present system, and it is obviously designed to allow a person referred to prepare his defence. The schedule allows him to be represented by counsel or by a solicitor.
Article 5 sets out the matters of which the commissioners must satisfy themselves. I emphasise, however, that the role of these commissioners is preventive rather than punitive, and hence a commissioner needs to be satisfied—if the House will notice the wording—not only that a person has been concerned in terrorism but also thathis detention is necessary for the protection of the public.That is why there is no provision made for a person to be detained for a specific period. At the time of detaining a person, it might, indeed, be difficult to decide how long that person should be detained to afford protection to the public, and a determinate period would imply a punitive sentence. A statement of the grounds for ordering a person to be detained is required in the detention order, a copy of which must be given to the person to whom it relates.
§ Rev. Ian Paisley (Antrim, North)
On that article, will the Minister say whether the commissioner in deciding whether he is satisfied, will be concerned to be, as in a court of law, satisfied beyond reasonable doubt, or will he have to be satisfied on the balance of probabilities? This is a very important point because if it is not clarified those who are brought before a commissioner can say that while there are expert judicial procedures, the standard has been altered. I should like to know the Government's mind on that point, which goes right to the heart of the matter.
§ Mr. van Straubenzee
I cannot and must not read more into the order than is there. My answer, therefore, is that the commissioner has to be satisfied. It may be of assistance if my hon. Friend were to develop this point further as we go through the debate, and if there is a 51 specific point to be answered, I am sure that that can be arranged.
If the commissioner is so satisfied in accordance with these provisions, procedures follow. If he is not so satisfied, he is required to direct that the person concerned be discharged. The House will see that Articles 6 and 7 make provision for an appellate procedure. The House knows that we have been most fortunate in that Sir Gordon Wilmer, a distinguished former Lord Justice of Appeal, has agreed to chair the Detention Appeal Tribunal.
I think that I should make further reference to the important provisions in Article 12. Paragraph (2) of Article 12 has the effect of converting all detention and internment orders made under Articles 11 and 12 of the Special Powers Act, that were enforced immediately before the commencement of the order, to interim custody orders. That means that all of those who were detained or interned at that time had to be released within 28 days or to be referred—in this case by the Secretary of State—to a commissioner for determination. In the event he has referred all cases, so that as soon as they have been determined by the commissioner there will be no one in Northern Ireland who has been deprived of his liberty and who has not had an independent hearing.
§ Sir Elwyn Jones
Have there been any releases so far as a result of any recommendation of the commissioners?
§ Mr. van Straubenzee
Yes. Up to 8th December, 45 persons had been released under the procedure. If further figures are required by the right hon. and learned Gentleman, I am sure that arrangements can be made to give him anything that he may require.
Coming to the schedule, I have already explained the reasons for hearings being held before one commissioner and for changes in the normal rules of evidence, but safeguards for the respondent have also been provided. As I explained, he must be served beforehand with a statement of the nature of the terrorist activities which are to be the subject of the hearing. He is entitled to give and adduce evidence and if he is excluded under the 52 provisions from any part of the hearing, he is entitled to be told the substance of the matters dealt with in his absence as far as the needs of public security and the safety of persons permit.
The commissioners have been given wide powers to hear evidence, question any person and cause inquiries to be made so that that may satisfy themselves of the truth or otherwise of the allegations. They may award costs and expenses and, indeed, they have done so.
§ Mr. John Loveridge (Hornchurch)
As to the commissioners hearing evidence of terrorism, the earlier definition of terrorism is:… violence for the purpose of putting the public or any section of the public in fear.I take it that the words, "any section of the public" mean any individual person?
§ Mr. van Straubenzee
The answer to my hon. Friend's question is, Yes. But he will see that the definition of terrorism… means the use of violence for political ends and includes …".He will see that it is not restrictive.
I regret to say—
§ Mr. Kevin McNamara (Kingston upon Hull, North)
During the course of discussion of the order in another place, Lord Diplock said, when talking about discussing sources of evidence,What this necessarily means is that the Commissioners must rely upon reports and information received from sources the identity of which cannot be disclosed to the accused or his lawyers or, indeed to the commissioners themselves."—[OFFICIAL REPORT, House of Lords, 7th December; Vol. 337, c. 442.]Will the hon. Gentleman confirm that the commissioners may not know of the source of information upon which a person's detention has been decided?
§ Mr. van Straubenzee
I can confirm that that might be the case, but I must be careful to avoid comment on the noble Lord's speech because in the same speech, as the hon. Gentleman will know, Lord Diplock made public the fact, as was perfectly proper, that he had delivered that day his report to the Government. I think that the House will wish to see the report before making any comments on what the noble Lord said. Lord Diplock made it clear that he was speaking in a personal capacity.
§ Mr. McNamara
Was he correct on a matter of fact that the commissioners themselves may not on occasions know the source of information?
§ Mr. van Straubenzee
I think that in certain circumstances they may not hear the evidence from the direct source of the information. I hope that I am correctly and carefully choosing my words. My right hon. and learned Friend the Attorney-General is listening to this exchange and if necessary I must ask him to put the matter in more precise language than I have employed.
I was saying that the regrettable factor —we all regret it—is that brutality and bloodshed as a form of intimidation or revenge have sadly become only too prevalent in parts of Northern Ireland. It is not reasonable to expect a witness of an act of terrorism to appear to give evidence if he has to return home in the knowledge that his life and the lives of his wife and children are in danger. For the safety and protection of the public it is our duty to see that terrorists are taken off the street, but we can do that only by providing alternative provisions.
The order makes provisions to ensure that vicious terrorists do not endanger innocent people, and to discontinue internment by the Executive, and to guarantee that a person whose liberty may be at risk is told in advance of the allegations against him. We allow him to be legally represented in a hearing held by the legally qualified commissioner, and we provide appeal against the decision of the commissioner.
I do not disguise from the House my personal sense of regret that such an order is necessary in a part of the United Kingdom, a country in which we set great store by the due process of the law. But necessary I believe it to be, and a marked improvement on what went before I feel certain it is. It is in that spirit that I commend it to the House.
§ 4.28 p.m.
§ Sir Elwyn Jones (West Ham, South)
The order raises important issues of human rights and civil liberty as well as questions about the limits permissible in a democracy in times of emergency to the exercise of executive powers to deal with terrorists and those who use murder and threats of murder to achieve their political 54 ends. That such men and women exist and that they have reaped and are reaping a grim harvest of murder and violence in Northern Ireland are basic facts which must be faced and dealt with. So is the fact of fear and intimidation of witnesses and jurors. It is an anxious problem which poses agonising choices in dealing with it.
The Government have, as a temporary measure, decided to deal with the situation by means of the provisions of the order. It is perhaps unfortunate that the Government have thought it right to deal with these grave problems by way of Order in Council and not by legislation. The Opposition have endeavoured to assist the Government and have shown their willingness to pass urgent legislation relating to Northern Ireland through the processes of Parliament at record speed. We completed the Northern Ireland Act, 1972, in the course of one night in both Houses. The Northern Ireland (Temporary Provisions) Act, 1972, was passed in a number of days. That could have been done with this important measure which affects the liberty of the subject. It would have given more opportunity for debate and, above all, opportunity for amendment of what is proposed.
There is comfort, however, in the fact that, as the hon. Gentleman has said, the order is temporary in character and intended to bridge the period before the Government introduce their recommendations following upon the report of Lord Diplock's committee about the terms and implementation of which we on this side of course reserve our position.
To the extent that the order revokes some of the special powers regulations made under the Special Powers Act, described by Professor Twining and others of the Faculty of Law at Queen's University, Belfast, as… that potent symbol of repression in the eyes of one section of the community in Northern Ireland …we accept it. Lord Diplock in another place last Thursday described some of the essential characteristics of trial by a regular court of criminal law which were absent in the special powers regulations and are present in the order, and the hon. Gentleman has drawn attention to some others. It was because of these facts and these considerations that my noble 55 and learned Friend Lord Gardiner, whose concern for human rights is as great as that of any man, has felt able to describe the order as… an immense improvement on the existing situtation, from the point of view of human rights."—[OFFICIAL REPORT, House of Lords, 7th December, 1972; Vol. 337, c. 445.]However, there are many reservations which I make about the order and many questions which I wish to put to the Attorney-General.
The House must have at least felt some disappointment with the working of the order so far—45 out and 45 in. I expected a somewhat different picture from that. When I look at the order with the care which it calls for, my first question relates to the power given to the Secretary of State to make an interim custody order which, after all, enables a detainee to be held for 28 days, and to be so held without the necessity of his being brought before any judicial person or body or any impartial person acting independently of the Executive. That degree of executive power remains in the terms of the order. When the Executive wishes to keep a suspect in custody on an ordinary criminal charge, the prosecuting authorities have to make successive applications to the court for him to be remanded in custody while the police investigation continues.
This is an important step and an important protection, if only, for instance, because it enables the suspect to raise publicly any complaint that he may have about his treatment. It also, incidentally, acts as a spur to the speeding-up of investigations. I ask whether some such procedure could not have been introduced as a protective measure in regard to the power of the Secretary of State to keep a man in detention for 28 days without any kind of external or judicial intervention.
§ Rev. Ian Paisley
Is the right hon. and learned Gentleman aware that there is great concern in Northern Ireland about the length of remands and that some prisoners have been remanded for more than six months? There is great concern in all sections of the community.
§ Sir Elwyn Jones
I am sure that the Attorney-General will note the point, bearing in mind his great and no doubt onerous responsibilities with regard to the administration of the criminal law. 56 If he can keep in order, no doubt he will try to deal with that important point. I shall be asking questions about the time factor in regard to these procedures also.
I was putting the question whether some procedure could not have been introduced to enable the suspect to have the protection of the courts, and perhaps we shall have the views of the Attorney-General on that. Under the terms of the order at any rate the interim custody order is conclusive of the matter —that is the authority for the detention. The chief constable then has 28 days to complete his investigations and to decide whether he should prove his case before a commissioner or not. If he then decides that he has the necessary evidence, he will refer the case to a commissioner and a date for the hearing will then be in the hands of the commissioner. When is that likely to be? There is no provision in the order to limit the period within which the matter must be disposed of either by the commissioner or on appeal by the Detention Appeal Tribunal, and one can only hope that the delay factor which the hon. Member for Antrim, North (Rev. Ian Paisley) mentioned in relation to ordinary remands and ordinary criminal proceedings will not arise in proceedings under this order.
Article 4 of the order relates to interim custody orders and it provides that the Secretary of State may make an interim order where it appears to him… that a person is suspected or having been concerned …in an act of terrorism. Does that mean that the Secretary of State does not himself have to make any judgment whether the suspicion is reasonable? Is it enough, for instance, for a policeman to state that he suspects that the man concerned has been concerned in terrorism and to report that fact to the Secretary of State? This is an important consideration in the light of some changes in the law in the Republic, about which we may hear something during the debate.
I submit that it would have been more reassuring if Article 4 provided that the Secretary of State should make an interim custody order only where he himself has reasonable cause to suspect a person in question or where he himself is satisfied that there are reasonable 57 grounds for suspecting a person of being concerned in terrorism. Some of the questions I have raised on this matter have also been raised by Mr. Tom Conaghty, a member of the Secretary of State's Advisory Council, and they are clearly questions which are causing concern.
It would seem also from the terms of Article 4(2) that an interim custody order shall be signed not merely by the Secretary of State but by a Minister of State or by an Under-Secretary of State. The Minister of State has just told us that he has had the heavy responsibility of signing some himself. I find that difficult to reconcile with Article 4(1), which requires that the matter must "appear" to the Secretary of State. Perhaps we can have some enlightenment upon this apparent contradiction.
Article 4(3) has the effect that it is left to the chief constable once an interim custody order has been made to decide whether and when the case should be referred to the commissioner. In other words, does the Secretary of State—or the Minister or the Under-Secretary—so to speak wash his hands of the matter the moment that the interim order has been issued and then it is up to the chief constable to decide what steps should be taken with regard to the detainee either with regard to his release or with a view to continuing his detention? In other words, does the Secretary of State have no further control or contact with the case once he or one of his Ministers has signed the interim order?
Article 5 raises a question which again was raised by the hon. Member for Antrim, North. I hope that I am not doing the hon. Gentleman any harm by mentioning him so often. The Article requires the commissioner to be satisfied as to the two matters referred to in Article 5(1), namely, that the person has been concerned in the commission of any act of terrorism, and so on, and thathis detention is necessary for the protection of the public".It is important that we should get rather more of a reassurance than we had from the Minister with regard to the question whether the burden of proof still remains on the prosecution. It is rather left, in the light of the answer to the hon. Gentleman's question, as a matter which must be determined by the com- 58 missioner. This is far too important a matter to be merely discretionary. I hope that the Attorney-General will be able to assure the House that the presumption that the suspect is innocent until he is proved guilty shall be the presumption that will apply in these detention proceedings as it does in ordinary criminal cases.
Article 7 deals with obviously important provisions for an appeal. This is one of the important advances in civil liberty which at any rate is accomplished by the order. Will the appeal procedure be a rehearing, with the tribunal being entitled to call the evidence which was given before the commissioner and to hear it afresh; or will the tribunal simply have to decide whether there was evidence before the commissioner on which in its opinion a decision to make the order could reasonably have been arrived at? In a matter of this great importance, I hope that full facilities for a rehearing will be available to the tribunal?
Article 8 deals with references for review which are to be made by the Secretary of State. There does not seem to be any provision for an appeal by a detainee against an unfavourable review decision. Is this intended or is it a mere error of omission?
Article 9 deals with the release of persons detained. Article 9(3) provides:The Secretary of State may recall to detention a person released subject to conditions under paragraph (2), and a person so recalled may be detained under the original detention order.The power to recall under Article 9(3) should be exercisable only if the Secretary of State is satisfied that there has been a breach of a condition subject to which the person was released. In all other cases the normal procedure for detention by way of interim custody order should apply with the implicit right of reference—indeed, duty of reference—to the commissioner and right of appeal in the event of the commissioner deciding that the detention order should stand. There should be a right in the person recalled to have the matter referred to a commissioner and/or to the tribunal.
§ Mr. McNamara
This provision also contains some of the terrible provisions of the original "cat and mouse" Acts which is one reason why people feel very strongly about this provision.
§ Sir Elwyn Jones
My hon. Friend will no doubt develop that interesting theme if he succeeds in catching your eye, Mr. Deputy Speaker. The provision as it stands is clearly one which gives to the Executive the powers of release and then recall and it is capable of abuse in the way my hon. Friend has mentioned. This is why I suggest that the safeguarding procedures should be adopted.
I have other matters to raise. I hope I am not burdening the House with too much detail, but these are intrinsically matters of importance, some of which are perhaps capable of being dealt with by administrative measures, but in any event it is vital that the House should indicate its position on some of these matters well in advance of consideration of the permanent legislation which the Government have indicated that they will be bringing before the House after study of Lord Diplock's recommendations.
Article 10 contains supplementary provisions as to detention and appears to deal with what the status of the detainee is. It says, for instance, that he shall be deemed to be in lawful custody, which will be a ready answer to habeas corpus proceedings. Should not the order have stated the precise status of a detainee? How is he to be treated when he is in detention? Is he to be treated as a convicted person? I understand from what I have read of the proceedings in another place that the answer is, "No", and that his position is the equivalent of the condition of a prisoner on remand. Whether that will give him any comfort is another matter.
§ Miss Devlin
Perhaps in developing that point the right hon. and learned Gentleman will ask the Attorney-General this question: if it is the case that these detainees are not to be treated as convicted criminals but as remand prisoners, is it right and proper that as soon as they are taken into police stations their fingerprints are taken and kept on record for all time?
§ Sir Elwyn Jones
The right hon. and learned Gentleman has heard that question. It is an aspect of the general matter that I was raising. We shall be interested to know the Attorney-General's answer to the question. I apprehend that the answer will be that the intention is that 60 a detainee should be put in the equivalent position to the condition of a prisoner on remand.
I do not wish to elaborate in this debate, partly because I am not sufficiently informed of the matter, what different arrangements and provisions there are in Northern Ireland for those who are held on remand in custody as distinct from ordinary prisoners who have already been convicted. I trust that they are better in the case of remand prisoners in many ways than is the case with ordinary prisoners, but I am not confident that that is so.
§ Rev. Ian Paisley
Is the right hon. and learned Gentleman aware that, because of the prison accommodation position at present in Northern Ireland, many remand prisoners, although they wear their own clothes and get visits daily, if they desire them, are kept locked in for a period of 20 hours a day? Is not this totally unacceptable to any concept of living conditions in prison?
§ Sir Elwyn Jones
I am afraid that I have to tell the hon. Gentleman that similar conditions very often exist in the case of remand prisoners in this country. This is a matter that has caused those of us who have to visit those in remand prisons a great deal of concern. But it may be that the right hon. and learned Gentleman can give us some hopeful indications about this painful problem, which is created partly by the increase in the volume of crime, partly by what is, in my view, an excessive reluctance to release on bail in many cases, and partly because of the sheer absence of sufficient or appropriate prison accommodation. At any rate, I think that this matter of the status of the detainee is not academic or theoretical, and I hope that we shall get some information about it.
The schedule is obviously of great importance. It sets up the procedures relating to the commission. It makes clear that proceedings are in private, with no provision for Press or public to be there. Therefore, it is a matter that we should regard with concern.
Part I deals with the position of the commissioners and the House will see in paragraph 2:A commissioner shall be a person who holds or has held judicial office in any part of the United Kingdom …".61 I think there is a case for suggesting that it would have been wise to allow, in an emergency tribunal or court like this, for some outside representations, for example from the Commonwealth, to be part of this machinery of appeal and supervision.
The House may also wonder whether it was right to give these powers to a single commissioner and whether there should not have been a requirement that two commissioners should have this important responsibility.
Part III of the schedule sets out the proceedings before commissioners. Paragraph 11 requires that there shall bea statement in writing as to the nature of the terrorist activities which are to be the subject of the inquiry.Is that enough? Should not there be some details of the allegations supplied so that the man may know what exactly he is having to face?
The most important feature of Part III of the schedule is the power which is given to the commissioners—and the appeal tribunal—not merely to hear witnesses in camera but to take evidence in the absence of the suspect where it is thought in the interests of security that that is desirable, and evidence of a kind which would be inadmissible in a court of law. I apprehend that as this debate develops, my hon. Friends will be emphasising this as the most disturbing part of this order.
It must be recognised that in the conditions of intimidation that exist, it may be essential, for the protection of a witness or of an informer, for procedures of this kind to be adopted in exceptional cases. But the use of these procedures —hearing a critical part of the case against a man in his absence, in private, when the ordinary rules of evidence are not complied with—is so contrary to the principles of natural justice that I submit that some special authority for that to be done should be obtained, for example, from the president of the appeal tribunal who is a distinguished former Lord Justice of Appeal.
Authorisation of the use of these Draconian procedures could be given in the absence of the suspect if need be, but at any rate the adoption of some procedure such as I have suggested would 62 be some protection which would give some reassurance in this situation. I think that some machinery of that kind, although I appreciate that it would impose burdens upon the president of the tribunal, could help to dispel some of our serious concern about this part of the order.
I apologise for having taken a good deal of time in examining these points of detail, but I think they raise important matters affecting the liberty of the subject and I hope we shall have a full answer to them from the Attorney-General.
§ 4.56 p.m.
§ Mr. John E. Maginnis (Armagh)
The subject of this debate is very serious and I understand that we have to finish by seven o'clock. Nevertheless I should like to congratulate the Minister of State on his speech in moving the motion. He was very courteous and instructive, and, although he was interrupted on many occasions, he put across what he had to say in a very effective manner.
I am convinced that the Government have really considered the case of internment and in doing so they have reached the stage where they find that they cannot do away with it entirely without putting something in its place. This is something which I am sure we would all like to consider in great depth.
Why is it necessary to have these special powers? It is simply because of the terrorist activity which exists in Northern Ireland, which is part of the United Kingdom. I am glad that the Government at long last are facing the realities of the situation, and I hope that before long the terrorist activity in Northern Ireland will come to an end and that we shall be able to return to normal court proceedings.
§ Mr. Latham
May I invite the hon. Gentleman to follow his line of argument a little more closely? Surely he recognises that there have been special powers of a different kind in operation for a very long time, which have enabled the Executive to put inside people who may or may not have been guilty, and this has not had the beneficial effect that the hon. Gentleman claims can be derived from this order. Will he say what his case rests upon?
§ Mr. Maginnis
I am glad the hon. Gentleman has raised this point. If he looks at the record he will discover that most of the Special Powers Act in Northern Ireland was in cold storage. It was not brought out of cold storage until the terrorists started their activities. This order will have exactly the same fate. When the situation in Northern Ireland returns to normal so that the normal processes of law and order obtain, this order will go by the board as well.
This is an emergency situation. Nobody likes it, but we have got to face facts. I would be the last person to support internment or detention, but there is a need for it and we have got to face reality. This is the problem that we are facing at the moment.
The hon. Member for Antrim, North (Rev. Ian Paisley) said that the due processes of the law have not been fully tried in Northern Ireland. He may be partly right, but in fact the due processes of the law are still being tried, and if he looks at the present situation he will discover that in the last three months 304 persons have been charged with offences in connection with, terrorism compared with 330 in the first nine months of this year, and that there were 171 convictions, and 64 acquittals. So the due processes of law are still going on side by side with the special legislation, part of which we are now discussing.
Many people deplore special legislation of this kind. The citizens of Southern Ireland deplore it. But the Premier of the Republic of Ireland has at long last had to introduce a measure to deal with terrorist activities in the whole of Southern Ireland.
We have had a recurrence of terrorist activity since the inception of the Northern Ireland Office. One can argue one way or another as to why that has been so, but the fact is there. We cannot ignore that, for over 50 years, we have had periods of IRA activity. The present period has been particularly severe, and I need not remind the House of the damage and the terrible loss of life which has ensued. The fact that from July to November there have been 155 deaths, 378 explosions and over 4,000 shootings gives some idea of the measure of terrorist activity in Northern Ireland.
I am convinced that strong measures must be taken to deal with the situation. 64 I realise that there are many people who would say, "Use the ordinary processes of the law to deal with it", but the terrorists have put themselves outside the law. As the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) said, it is extremely difficult in special cases, because of intimidation and the rest, to get witnesses to give evidence. We must have these special measures. Nevertheless, being a reasonable man, I hope that, before long, these special measures will go into cold storage and we shall return to the normal processes of law and order in Northern Ireland as we have them in the rest of the United Kingdom.
§ Mr. Maurice Foley (West Bromwich)
Would the hon. Gentleman define what is a normal situation in Northern Ireland? In how many years since the existence of the Province have there been no emergency powers? Is it not right, therefore, that one should question the very core or very substance of the existence of Northern Ireland?
§ Mr. Maginnis
I am glad that the hon. Gentleman asks that question. We have emergency powers also in this country, which is the home of democracy. We never bring them into operation unless the situation demands it, but they are there. If we could have a long period of calm in Northern Ireland, all these powers would go into cold storage. They are used only in emergencies. I am convinced that the present emergency will come to an end more quickly as a result of the measures taken by the Premier of the Irish Republic.
I ask my right hon. and learned Friend the Attorney-General to look at the situation in Northern Ireland vis-à-vis that in the Republic. All have now taken extra special measures to deal with terrorism. Will he now consider the setting up of a British Isles security committee? This could be looked at in the context of, perhaps, the Council of Ireland or some other body. It would be a useful step to take because, instead of having separate legislation, each going its own way, the three Governments could act concurrently during a terrorist campaign and have more or less similar legislation. Thus, if terrorist activity arose in Great Britain, Northern Ireland and the Republic would deal with it concurrently with the British 65 Government here, or vice versa. For far too long, terrorism has been the order of the day in Ireland, North and South, and I am sure that that would be a step in the right direction to deal with it.
I hope that the day will soon come when sensible people will come together and say, "We have had enough of this", and get on with the real problems which confront us in both Northern and Southern Ireland, the problems of providing houses, jobs and good conditions for the people living there. I hope that the order will be only temporary in its operation and that, before six months have passed, the need for it will have lapsed.
§ 5.5 p.m.
§ Mr. Arthur Latham (Paddington, North)
We hear a lot about the rule of law and about law and order from time to time, and it seems to me both significant and sad that so few of those who are concerned with proposed changes in the rule of law are present for this debate.
The order was made by the Secretary of State on 1st November, it has been in operation since 7th November, and Parliament is now asked to approve it on 11th December, the last possible date before it would otherwise expire. It contains no terminal date even though the Minister assured us that it is some kind of interim measure. It has been suggested that there are technical reasons why no terminal date is put in the order, but these I have been unable to establish.
The order replaces the crude form of internment to which the Opposition have been opposed with a more refined form of internment. I do not accept the Minister's claim that the procedure under the order is so different in kind that it no longer entails internment by action of the Executive. It is, as my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) said, an order which reduces the liberties of citizens of the United Kingdom, and if it affected any part of the United Kingdom other than Northern Ireland we should, I am sure, have had a much fuller attendance for today's debate. It is a sad reflection on the state of opinion and of attitudes towards affairs in Northern Ireland that an order of this kind can be treated so lightly by right hon. and hon. Members.
66 Although it appears to relate to only one part of the United Kingdom, it seems to me that it could be argued that in certain circumstances the arm of the order could reach out into England, Scotland and Wales should a suspect seek refuge in another part of the United Kingdom. Perhaps hon. Members who represent other parts of the United Kingdom would do well to reflect that it could have repercussions and implications for their own constituencies and areas with which they are more familiar.
The order diminishes the protection from wrongful arrest and imprisonment of United Kingdom citizens. It takes them outside the traditional protections of the courts of this land which have been so carefully built up. I submit that this is a matter of great moment which demands the fullest attention of the House, but the order is not receiving the full attention of the House because of the way in which it has been brought in. For a variety of reasons, there has been inadequate discussion of the issues involved among right hon. and hon. Members both on this side and, I suspect, on the Government side.
The order provides for private hearings, for the abandonment of trial by jury and for the disregard of the normal rules of evidence, and it has many other features which are objectionable to champions of civil liberty, including the right of the Secretary of State to put someone inside for 28 days at a mere stroke of the pen. Again, I challenge the Minister's contention that it removes internment by the Executive.
§ Mr. Clinton Davis (Hackney, Central)
What has troubled me a great deal is how the Government can square the order with their signature to the European Convention on Human Rights. Has my hon. Friend any thoughts on that?
§ Mr. Latham
If my hon. Friend has the opportunity, he will, no doubt, develop that point. I have certain points to raise stemming from the circumstances in which the order comes before the House and having regard to the time limit which is imposed upon us.
In the hands of some Ministers one could think of, other than the present occupant of that office, the powers given to the Secretary of State for Northern 67 Ireland would be positively frightening. We are perhaps less frightened while they are being exercised by the right hon. Gentleman, but they are still extremely disquieting.
I want to make clear that in what I am saying I am not challenging the integrity, sincerity or motives behind the order. I want to consider the merits or demerits and question the rightness and wisdom of the order. However, I wish to emphasise that it is wrong, in my view, that law of such consequence and with such far-reaching implications should go through Parliament by means of a statutory instrument. Many of us are concerned about the great volume of delegated legislation which receives too little attention, but for a drastic and radical change of this kind to be made in this way seems to me to be quite unacceptable.
It is lawful for the Secretary of State to introduce an order in this way because of the temporary provisions legislation. That Act also went through the House too quickly and with too scant attention, as have so many recent measures connected with the problems of Northern Ireland.
§ Mr. McNamara
If my hon. Friend is trying to be helpful by making points that I shall be unable to make if I am not called by Mr. Speaker, will he also ask the Government what happened to the Northern Ireland Committee?
§ Mr. Latham
I hope that the Minister will deal with that question when he replies to the debate. My hon. Friend's intervention emphasises not only that those of us who manage to catch your eye, Mr. Speaker, can not say all that we wish but that the House generally is denied what I would regard as a proper time to consider a measure of this sort. I know that the Secretary of State was obliged, under the affirmative order procedure, to give only one and a half hours for debate but that he gave three hours. But three hours is still totally inadequate for consideration of such a measure as this. I am a little puzzled by the attitude of my right hon. and learned Friend the Member for West Ham, South because I do not believe that he advised us to oppose the order. One of the difficulties, of course, is that the order cannot be 68 amended, no matter how helpful, useful or constructive are the suggestions made by hon. Members. It is a "take it or leave it" order. We have to take it with ail its defects or vote it down. I would have thought that my right hon. and learned Friend had made out a case sufficient to show that the order was defective and that that alone justified a vote against the instrument.
Not even the Select Committee on Statutory Instruments or the new body recommended by the joint committee on delegated legislation has had an opportunity of giving the order technical examination, because in common with all other statutory instruments no parliamentary committee has yet been appointed this Session to perform what I believe to be that very valuable, important and useful function. If that committee had been able to meet and consider some of the technical points we might have wanted to add to the list of my hon. and learned Friend's questions whether Article 9(1) conflicts with Article 4(3). It is claimed that under one the Secretary of State is given the power to release a detainee at any time and under the other provision is made for a person to be held who is in interim custody until his case has been considered by the commissioner if an assistant chief constable or a chief constable of the RUC so decides.
Article 11(c) introduces the risk that a wife who shelters a husband who is innocent becomes herself liable to up to five years' imprisonment as a criminal. That is an extreme step to include in an order of this kind. Will the Attorney-General, in defending the order, explain why in Article 4(3) the prerogative of reference to the commissioner for long detention rests only with the appropriate officer of the RUC and not with the Secretary of State? It would appear that, whilst the Secretary of State cannot make such a reference and can intern for only a limited period, the prerogative of having someone detained for an indeterminate period rests with no one politically accountable to the House but with an officer of the RUC. It means, in effect, that if at any time an officer of the RUC felt more favourably towards one sectarian element in Northern Ireland he could decline to refer to the commissioner a case which the Secretary of State 69 might feel could appropriately be referred to the commissioner.
Because of the time factor and because the order cannot be amended, it is possible in the few moments left to me only to return to the general principle. There will be numerous points not raised by me or by other hon. Members because of the limitation of the time. It is said that the price of liberty is eternal vigilance. Parliament in these circumstances is not being permitted to be vigilant enough in safeguarding civil liberties. Eternal vigilance is not the only requirement in the maintenance of liberty. Other prices must be paid for democracy. The rule of law, about which we hear so much from some hon. Members, requires that political decision, executive action and judicial surveillance should be different and separate. The order distorts that pattern and could even be said to destroy it. I ask hon. Members to examine the underlying philosophy and proposition of the order, the whole idea of internment, and that is that democracy could best be protected by undermining democracy. I believe that the opposite is the truth because the rule of law in its fullest democratic sense has to make a choice. Either we must risk imprisoning someone who is innocent so that the guilty shall not go free, or balancing that is the risk that the guilty shall escape justice, rather than that the innocent shall be wrongfully punished. Our judicial system seeks to work by the latter, and the order establishes the former.
I am not in any way soft about terrorism and what are rightly described as mindless acts of violence but I question whether the end sought by the order justifies the means proposed. In Greece, Spain, Turkey, parts of Africa, some East European countries and some South American States the denial or erosion of judicial rights of citizens is justified by the need to protect the State, property and human life. The justification for the order may differ in degree but not in kind from the instances I have just quoted.
Many times my hon. Friends and I have been asked what is the alternative to internment. Many of us have replied "Charge them or release them", and for my part I stand by that principle. It is said that the problem is of intimidation of witnesses. It occurs to me, first, that if in the procedure that has been outlined 70 evidence is to be at all worthy of consideration and the accused knows the evidence, it is highly likely that he will be able to deduce the source of evidence which has been submitted, and I challenge even that contention by the Minister.
I do not believe that the difficulty is so much in obtaining conviction. The real difficulty lies in prevention and detection. Yet crule internment, certainly no less adequate an instrument than this order from the point of view of those who are advocating it, has not done the trick in the past. There was more violence and there were more deaths after internment. The real problem is prevention and detection, and I do not think that the answer can lie in this sophisticated procedure for imprisonment without proper trial. The real answer lies in the political and other initiatives, details of which we are still awaiting from the Government. I also believe that any form of internment, whether it is the old crude kind or the refined sort, is likely to be an obstacle to success in these fields. I therefore believe that the advice from my Front Bench to abstain on a Division on the order is bad.
It is not true to say, as the Minister did in opening the debate, that internment is dead. He said that what is provided for in the order is more acceptable. The fact that it is less unacceptable than that which went before is no reason for accepting it, and I ask my right hon. Friends on the Opposition Front Bench to reconsider their position.
The fact is that we have only two Lobbies, and there is no significance in abstention unless a Division is called. Unless we divide, there will be no Division; unless there is a Division, there will be no abstention.
There are three grounds for the Opposition's voting against the order. The first is the totally inadequate opportunities for parliamentary scrutiny. The second is the detailed faults and defects that my right hon. and learned Friend has described so well. Thirdly, there is the question of the whole principle of trying to protect democracy by destroying it.
§ 5.21 p.m.
§ Rev. Ian Paisley (Antrim, North)
We are dealing with a matter of great importance. We in Northern Ireland are 71 faced with a great tragedy. No one could over-emphasise the seriousness of the present situation, the escalation of murders of a most brutal and dastardly nature, and the continuation by the Irish Republican Army of its campaign of bombing, shooting, killing and maiming. Let no hon. Member forget that the order must be taken against the dark background of a very distressing, perplexing and tragic situation in Northern Ireland.
§ Mr. John Mendelson (Penistone)
The hon. Gentleman has made a very serious and certainly correct point, that the tragedy of violence is continuing in that part of the United Kingdom. He said that the IRA is killing people. With his wealth of knowledge of the situation, will he now tell the House who is killing the Catholics, the members of the minority, in all the bestial murders that are committed? Who are the murderers?
§ Rev. Ian Paisley
If the hon. Gentleman had followed what I said carefully he would have noticed that in my opening sentences I spoke of murders. I did not say that one section of the community was guilty of murder or that another section was guilty of murder. I made a general statement, to which I added that the Irish Republican Army was still carrying out its campaign against the forces of the Crown in killing and shooting and bombing.
There is no doubt that members of the Protestant faith and of the Roman Catholic faith are being murdered in Northern Ireland. There are Protestant places of worship that have been bombed and burned. There are Roman Catholic places of worship that have been bombed and burned. In my constituency there was the blowing up of a Roman Catholic place of worship, and I was the first to condemn it. I said that if it was the act of the IRA it showed to what depths it would stoop to put one section of the community against the other, and that if it was the act of any Protestant elements they were unworthy of the name. I added that if men escaped the laws of men there was a greater tribunal they would have to answer elsewhere, before God. I should like to put that clearly on the record.
Perhaps I may illustrate the point further. At the top of my own road, 72 Beersbridge Road, a Roman Catholic was shot dead the other day. He was the father of children. At the lower part of the road a Protestant mother was shot dead. That illustrates the tragedy we face in Northern Ireland, and the fact that the escalation of violence goes on and on. That is the background to the order.
I told the House in a speech that there was a necessity to deal with the situation, and that because of its abnormal nature two things were necessary—special laws and special procedures. I also pointed out that when those things were introduced to deal with terrorism it was absolutely necessary that they be temporary, with the most stringent constitutional safeguards.
I must add my voice to those who have said that an Order in Council is not the right means to deal with such a significant matter, one affecting the rights of the individual. That has always been my position. We must know that it is a temporary provision, and Parliament should have had the right to have a First Reading, a Second Reading, a Committee stage and a Report stage.
For example, there is a great defect in article 11, dealing with the offence of escape. Article 11(a) says that a person detained under an interim custody order or a detention order is guilty of an offence if he escapes. That is all. If I help that person to escape I am guilty of a crime for which I can receive five years' imprisonment, but a man is not guilty of any offence if he attempts to escape. The article should deal with any person detained under an interim custody order or a detention order who "escapes or attempts to escape", and there should be a further provision that a person assisting him to attempt to escape is guilty of a crime.
The order is very defective. There are bound to be defects in such an order when we do not have the opportunity to put it through the whole parliamentary machinery. That has happened before on the other orders dealing with tourism and other matters with nothing to do with terrorism. That has always been my position. I should like the Attorney-General to comment on the issue when he replies. If a person attempts to escape when he has been detained or is 73 under an interim order of custody, is he or is he not guilty of a crime? It appears to be clear from article 11(a) that for attempting to escape he would not be guilty of any crime, as the law would stand. I point that out simply to show that there are bound to be defects in legislation dealt with in this way.
I feel that the Government have dragged their feet on the question of terrorism in Northern Ireland. The situation has not been faced up to quickly enough. The House needs to consider not merely procedures but special laws to deal with terrorism.
When we consider what happens when terrorists are brought before the courts, we must consider the position of the judges, the juries, those who give evidence and the rules under which the evidence is submitted. I grant that, with regard to the judiciary, there is provision in this procedure whereby a commissioner can do the task allotted to him. I do not believe that there is a wide intimidation of juries in Northern Ireland. I asked a series of Questions about the matter in the Stormont Parliament, and the Attorney-General there could not give me any evidence of juries bringing in perverse verdicts as a result of intimidation. Would the right hon. and learned Attorney-General comment on the position from the time at which Stormont was prorogued until the present? Has he any evidence of widespread intimidation of juries?
I turn to the question of the rules of evidence. Article 5 says that the commissioner must decide whether he is satisfied that he should make an order. The standard to be pursued in an ordinary court of law is that a jury must be satisfied beyond reasonable doubt. Will that continue to be the standard, or will a case be adjudicated only on a balance of probabilities? Perhaps the Attorney-General could enlarge on this extremely important point. If a special and temporary procedure is to be made effective and if extra evidence is to be introduced —evidence which in an ordinary court of law would be ruled out as inadmissible—it would be difficult to keep to the standard of an adjudicator being satisfied beyond reasonable doubt. There is a conflict involved, and I should like to hear the Attorney-General's opinion.
74 I turn to Part III of the order which relates to the hearing of evidence. We are told in paragraph 14 that a commissioner mayreceive oral, documentary or other evidence, notwithstanding that such evidence would be inadmissible in a court of law".Can the Attorney-General tell the House whether the commissioner will be in a position to have regard to the source of any evidence? Surely a commissioner could not adjudicate unless he was aware of the source of information. To have the source of information would add to its credibility, for we all know that there are sources of evidence which can be questioned. It is a most serious point if this matter is not to be within the commissioner's cognizance, and I am sure the House would like a clear statement from the right hon. and learned Gentleman.
It is vital when departing from the usual procedures of the law to hedge these provisions with constitutional safeguards. Because we have before us an Order in Council, we shall not today have the opportunity to introduce sufficient safeguards into these provisions. Nobody condemns violence and terrorism more than I do; it must be stamped out, and the most rigid methods must be used in the present situation. However, I also am of the opinion that in taking action necessary to meet the present situation in Northern Ireland—I believe that further laws are necessary, and I hope we shall soon have legislation on other matters—we should emphasise the importance of constitutional safeguards.
The people of Northern Ireland should know how long these powers will remain in existence; they should be told when these matters will come up for discussion again. Once the order has been in operation, shall we be asked to look at the matter again? These matters should be constantly before the House, and we should have an opportunity to reconsider them.
I should like to turn to the question of remand prisoners. I understand that a person who is brought up under these provisions will be in the position of a remand prisoner, and the situation of such prisoners who are held at present is extremely serious. A person held in such circumstances can be kept in custody for six months, and then, for some reason 75 or other, he may not be tried at all. The prosecution may be withdrawn, or he may be tried and found not guilty. But in that period of six months he will have lost his job, it will leave a stain on his reputation, and his family life will have been practically destroyed. This is a very serious point and underlines the fact that men should be brought to trial as quickly as possible.
The conditions under which remand prisoners are kept at present are, again, extremely serious. When a man is lifted and put in detention under this order, he has to sit in a prison cell for 20 hours, with only four hours in which to exercise himself. We should look into the situation to see whether there is some way in which a prisoner could have more time for exercise. No doubt the Attorney-General will deal with this matter in his reply.
I conclude these brief remarks by returning to the preface of my speech. We are living in serious times in Northern Ireland. We now face the new threat of rockets, which are being used against British troops, and which originate behind the Iron Curtain. We have seen the escalation of murder, the continuation of killings and bombings. It is against this background in Northern Ireland that, somewhat reluctantly, I must welcome any consistent effort that is made to deal with terrorism in Northern Ireland. It is essential for the terrorist campaign and all who engage in it, all who would raise their hands against their fellows and who would seek by acts of violence to bring about what they believe to be their political solution to the problem, to be dealt with. I welcome these steps which are being taken towards that end. Although it would have been better for the House to have had a full-scale debate on this subject since in many ways the order is defective, I must welcome these provisions.
§ Mr. Speaker
We have fewer than 50 minutes left before the wind-up speeches. There are still a number of hon. Members who wish to take part in the debate, and I hope that those who catch my eye will remember that fact.
§ 5.38 p.m.
§ Miss Bernadette Devlin (Mid-Ulster)
Since there are still many hon. Members 76 who wish to contribute to this debate, I shall not go over all the individual points which have been made—not even in my terms since my reasons are clear for opposing this legislation, or in terms of those hon. Members of the House who claim to believe in parliamentary democracy, law and order, and justice. Let me at the outset say that I believe this piece of legislation is in formulation and intent a disgrace to this House and the so-called democracy of this country.
I do not intend to go through these provisions line by line, but at this stage of the problems of Northern Ireland I am sick, sore and tired of hearing so many democrats weeping about repression. I am tired of hearing people, their hearts bleeding, say that they are opposed to oppression, that they do not like seeing people repressed. I put the matter seriously to my own colleagues in the Parliamentary Labour Party that this is not a matter of standing with the Provisional IRA. By voting against this order and by standing against unfair repression, there is no question of our sanctioning the works of the Provisional IRA. It is not a matter of saying that because one is opposed to undemocratic legislation one is in favour of organisations which espouse violence. The two points are separate. But one cannot say "It is my intention to protect democracy by tyranny". One cannot protect democracy from tyranny by tyranny.
It is all right for the Minister to say that internment by the Executive has ended. The Government may have proved a failure in politics, but they have proved also that they could rewrite the Oxford Dictionary. From the beginning of their term of office we have had brutality and torture described in the House as measures of ill-treatment. Now internment is being ended but detention is being introduced.
I asked the Minister of State a specific question, and he answered an entirely different question. I asked how many detention orders had been signed since the Secretary of State for Northern Ireland took office—not from 7th November but from the beginning of March. It is all very well for the Minister to say that there are not internment orders but detention orders or that the Long Kesh camp no longer exists but that now we have Maze Prison. To a 77 detainee it is exactly the same. Soldiers come to a man's house between 10 o'clock and 5 o'clock usually in the small hours of the morning. If he is not quick enough about opening the door it is knocked in and he is arrested under Section 10 or Section 11 of the Special Powers Act. Under Section 10 he is arrested for 48 hours for the purpose of interrogation; under Section 11 he is arrested for the purpose of detention before the question of a detention order or internment order being signed arises. He is solely in the hands of the police.
I am of the opinion that it is the intention of the security forces to take every male member of the Ardboe area, in my constituency, four at a time and take their fingerprints. Every night soldiers have invaded the area. Every night they arrest four men and take them off for interrogation. The men are not even kept for the normal period of 48 hours. Their fingerprints are taken and they are then sent home.
The security forces may require somebody's fingerprints. They may have a set of prints which they want to match. However, what would happen if that policy were adopted in this country and if whenever the police wanted to solve a murder they raided houses and said "We are looking for a murderer. You must all turn up, under threat of imprisonment, at the police station and have your fingerprints taken"? In Northern Ireland the people are released: no detention order is served against them. Therefore, they are considered to be not terrorists but law-abiding citizens. But records and files on them are kept at the police station solely because they have been taken to the police station.
Measures of the kind we are discussing may be very effective, but let not the Government talk about the tyranny of illegal organisations when such measures go against every human and individual liberty in this country. Let members of the Labour Party note that we have already heard cries from the benches opposite for the introduction of laws against the IRA in Great Britain. The hon. Member for Armagh (Mr. Maginnis), who has never been known to call for co-operation between north and south in Ireland, now agrees that there should be the utmost co-operation. Jack Lynch has 78 suddenly become the golden-haired boy of members of the Unionist Party—and small wonder. I am sure that they wish that they had thought of repressive legislation as effective as his.
I warn my colleagues on this side of the House that a hole is being made in the civil liberties of the people of Britain. The cry is being made. It will not be long before the cry becomes effective. Laws will be introduced, and people in this country will be told that they have no need to worry about them and that they are merely to deal with the members of the IRA who may sneak in through the airports and seaports. Then something arises in this country—be it with the trade unionists, with the students, with some of the Left-wing organisations or even with the anarchists—and the legislation will be on the books.
§ Miss Devlin
If legislation in this country is operated in anything like the way in which it is operated in the north of Ireland, the Monday Club will be perfectly safe.
This order is the first chink in the armour. Therefore, I join with those who have spoken in urging the Parliamentary Labour Party to think again. It is not a matter of backing me or of backing my hon. Friend the Member for Belfast, West (Mr. Fitt), and it is certainly not a matter of standing with the Provisional IRA. It is a matter of protecting the democracy in which this House believes. I say to this House "It is not my form of democracy; it is yours. Throw it away at your peril."
§ 5.46 p.m.
§ Mr. John Biggs-Davison (Chigwell)
I support the order without any elation or enthusiasm. I agree with hon. Members who have complained that it is being rushed through as delegated legislation. This is no way to handle such a grave matter or Irish business. There was formerly a Parliament which could have discussed a measure like this at length, and I hope that there will be such an assembly again. But after all that has happened in Northern Ireland, and after the revelations of the arming of Irish terrorists with weapons from the Soviet bloc, there should be little need to convince the 79 House of the regrettable and stern necessity of an order of this kind.
I am advised, in spite of what the hon. Member for Paddington, North (Mr. Latham) said, that there is no conflict between this order and the European Convention on Human Rights. The hon. Lady the Member for Mid-Ulster (Miss Devlin) said that she was sick of democrats talking about repression and suggested that for a democratic assembly to pass an order of this kind was in some way detrimental to democracy. But surely there are hon. Members opposite as well as on this side of the House who agree that one of the reasons for the destruction of democracy in pre-war Germany was the tolerance shown by Weimar parliamentarians towards those who resorted to physical force on the streets and the weakness of the State in face of private and party armies. Goebbels said "He who controls the streets will control the State."
It is proper for an English Member to make the point that either the Crown forces will subdue the IRA and all other terrorist bodies or we in Great Britain may expect urban guerrilla action on a scale which will reduce to insignificance the somewhat amateurish exploits of the Angry Brigade.
We may need in Great Britain, although I hope not, to arm the State with wider powers of self-defence. So far, however, armed conflict has been limited to the Northern Ireland Province of the United Kingdom, where people are certainly different and different security problems are posed.
My hon. Friend the Minister of State said that we could not rely on normal judicial proceedings. There is nothing new in that. I do not suppose that there has been an Irish Secretary in history who has not said that. It was put to me once—I do not know whether it is correct—that one of the reasons for the plantations in Ireland was the difficulty in obtaining juries who could be relied upon to bring in true verdicts. But the problems of security are distinctively Irish problems. That is one of the reasons why I opposed direct rule and the transfer of security from Stormont to Westminster, and why I believe that the policing of Northern Ireland should, at the appro- 80 priate moment, be restored to Northern Ireland hands.
Those who are most vociferous in this House for the reunification of Ireland, whether within a bourgeois republic or within a republic more satisfactory to the hon. Member for Mid-Ulster and modelled on Castro's Cuba, and all those who make light of the historic difference between the six counties and the 29 should be the first to recognise that Northern Irish security cannot be handled as though the six counties were English, Scots or Welsh counties. To many British politicians have held the Irish to be perverse because they ought to be like the English and they are not. The fair comparison is not between conditions in Great Britain and Northern Ireland but between conditions in the north of Ireland and in the south of Ireland. What Eire Government, whether Free State or Republican, have not needed arbitrary powers for the defence of sovereign Irish institutions? Anyone who studies the history of the past since the establishment of the Irish Free State will know that police treatment of suspects and internees has been much rougher in that country than anything which has been accepted in the United Kingdom.
I am all for replacing special powers with regular legislation. But in the south the Offences Against the State Act remains in force, and this order is milder than the recent legislation which has been passed through the Dail and the Senate and signed by President De Valera. This kind of legislation, when applied in the south of Ireland, was described by one of the highest judges in Dublin as "preventive justice".
I have great sympathy with those who have protested in this debate that the order provides for internment in another and more sophisticated form. But internment has been one of the facts of Irish history and one of the means for securing the State in Ireland, north or south—
§ Mr. Maginnis
Does not my hon. Friend agree that internment has had to take place in this country during a state of emergency as well?
§ Mr. Biggs-Davison
I agree very much with my hon. Friend, as I do with what he said about co-operation between north and south in matters of security whether 81 within the framework of an all-Ireland council or otherwise.
Humbug is a great god, especially in these islands. Just as rat-catchers can be called "rodent operators", so internment can be called "detention of terrorists".
This is an interim order. If in this form the detention of terrorists can be made more widely acceptable, that is all to the good. But I agree with the hon. Member who said that it is a more refined form of "internment". So be it. But it vindicates the controversial policy of the late Stormont Administration—a policy with which Her Majesty's Government were never able to find fault and which they are now essentially continuing.
§ 5.54 p.m.
§ Mr. A. W. Stallard (St. Pancras, North)
I begin by joining those right hon. and hon. Members who have protested about the haste with which we are discussing this order. We have debated some 21 orders of one kind or another since the introduction of direct rule. It seems to me that because of the haste and the lack of discussion of many of them, and because there is always the fear that we shall be accused of exacerbating the situation in the six counties, we are in danger of giving up some of the hard-won civil liberties and rights which we have jealously guarded for many years. Some of that will be done by default because of the inadequacy of these debates.
We have been told that the order enables the Government to depart from the policy of internment. As one who has consistently opposed and campaigned against internment, I want straight away to ask the Minister of State one obvious question. If the order replaces internment, what will happen to the 250 men who are still languishing in prison. Will they be released and rearrested under the procedures outlined in the order or will they remain in internment and have their cases referred to the commission by some means not contained in the order? I fear that the answer is that they will remain in prison while the commission discusses their cases. Therefore, I argue that the order does not replace internment but simply introduces another form of detention, as the hon. Member for Chigwell (Mr. Biggs-Davison suggested).
82 A number of aspects of the order worry me. Many of us are concerned about its effect on civil liberties. I speak simply as a layman and not as a lawyer, and therefore it is possible that my understanding of the legal position is not as good as it might be. However, I find it difficult to accept the claims made by Government spokesmen that the order represents a return to the rule of law. That has been said on a number of occasions. Perhaps I can put forward a few of my reasons for taking the contrary view.
First, under the order a suspect may be detained for 28 days, following which his case may be referred to the commission. The order does not say that it will be, but that it may be, referred to the commission at the end of the 28 days. That is not the rule of law as we know it. In this country a person has to be charged with an offence at the time of arrest. According to the order a person has to wait on suspicion for 28 days without being charged. How can that be a return to the rule of law?
Even when cases are referred to the commission after the 28 days, as I read the order no time limit is set during which judgment must be pronounced. The case can go on indefinitely. There is no provision in the order setting a limit on the period during which a case may be judged. It means that even after the 28 days there may be a long delay before judgment is pronounced on a case. In view of that and a number of other features contained in the order, no change has been made; the order is simply a continuation of internment under the new name of "detention".
Introducing the order in another place, the noble lord, Lord Windlesham said:… there is a temptation to think that any departure from … judicial procedures must be a retrograde step."—[OFFICIAL REPORT, House of Lords, 7th December, 1972; Vol. 337, c. 438.]That is exactly where I stand. I believe that to be true. Any departure from judicial procedures is a retrograde step, and a grave responsibility lies upon those who take us down that road and begin the process of departing from the judicial procedures to which we have been used.
83 According to Part III, paragraph 12 of the schedule,Proceedings before a commission shall take place in private.This is a new departure to which none of us could agree. In another part of the schedule there is a provision to the effect that unsworn statements shall be permitted in evidence. Whatever he is called, the internee or detainee and his lawyer may be excluded from any part of the proceedings and prevented from hearing the evidence against him. Is that a return to the rule of law?
§ Miss Devlin
Is my hon. Friend aware of a case that occurred last week, where the respondent or detainee appeared before a commissioner and evidence was given from behind a screen? The evidence ran:During the apprehension of this person on 9th August a quantity of arms were found in an outhouse in his back yard.The detainee put forward in his defence that he had not been arrested until September and that he did not possess a back yard, much less an outhouse with any arms in it. Whereupon the voice behind the screen—and this resulted in an adjournment for a few days—having previously identified the detainee, said, "I must be reading from the wrong piece of paper. I was not there myself."
§ Mr. Stallard
I do not know of that case, but it shows that the haste with which we are acting over this order prevents us from examining cases like that, of which there must have been many since the introduction of this system. Had we gone through the proper processes we would have been able to examine cases like that. That only emphasises the need for us to insist on proper debates on these very important matters affecting the six counties.
Another part of the order denies the right to remain silent; so there can be no protection against self-incrimination. That is not the rule of law as I understand it—again, as an ordinary layman. The Secretary of State seems to be the accuser, the judge, the jury and prosecuting counsel. He also makes the detention order prior to proceedings. How can we prevent a situation like that if we are concerned about law and order and the judicial procedures?
84 If these powers were being exercised in some faraway place like Mozambique, South Africa or Rhodesia, as the hon. Member for Paddington, South (Mr. Scott) said, there would be a hullabaloo and an outcry from every liberal-minded person throughout the United Kingdom —and quite rightly, too. What worries and frightens me is the deathly silence on the part of many people who should be protesting. This matter is not just about Northern Ireland; it relates to civil liberties, affecting all of us—and some of us more than others.
It has been said that the order is an improvement on the existing procedure. In the same vein, it could be argued that electrocution is an improvement on hanging, or the guillotine. That is about the strength of these procedures. The order simply encompasses the internment procedures contained in the Special Powers Act under the new name of the Detention of Terrorists (Northern Ireland) Order.
I urge the Government to repeal the Special Powers Act, to end internment, and to introduce a Bill of Rights which would offer the basic protection guaranteed by the European Convention on Human Rights. This order does not do that. It violates those protections, no matter what anyone says. If the Minister cannot answer some of the points that I have raised I shall be one of those who vote against the order tonight.
§ 6.3 p.m.
§ Mr. John Loveridge (Hornchurch)
In spite of the serious doubts expressed about the order, it is surely remarkable that the Government, in a situation of terror and murder amounting almost to civil war, are bringing in an order to mitigate the worst evils of keeping people detained without trial.
Who could think at a time when witnesses, often for their lives' sake, are not willing to give evidence in open court, it would be possible to do without some form of detention that protects the public? We welcome this attempt towards further liberty and see it as a step towards the continuing process of law which we should like to see made permanent. But let none of us confuse it with the permanent law as we wish it to be in our country.
Like other hon. Members, I am sorry that the order has not been through the 85 full process of parliamentary debate that a Bill would have had. It may even be a precedent for this side of the waters if the spread of terror comes closer to this House, as it might well do.
My first question relates to the number of assistant chief constables who may act under the order. What is the present establishment? Is it proposed to increase it, or will it be kept within reasonable limits?
Then, in the last lines of article 2 we read:'terrorism' means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear."Any section of the public" I take to include any individual person, and I hope that this will be precisely defined this evening.
Article 5, relating to the adjudication by a commissioner, says that the commissioner must be "satisfied". The hon. Member for Antrim, North (Rev. Ian Paisley) has properly said that it needs to be made clear whether he must be satisfied on the balance of probabilities, or more. For the order to work, it must be on the commissioner's own judgment of law under the order. But of what is he to be satisfied? It is clear that he has to be satisfied of the commission or attempted commission of any act of terrorism, as defined, but what is not clear is how it relates to intimidation or the threat of terror to an individual. Surely the commissioner should be able to act in such a circumstance. I should be grateful for clarification of this.
Article 10(4) provides that prisoners who are held under the order will be held as if on a remand in custody. This seems reasonable at first sight, even though we recognise that prisoners held in such circumstances may remain in prison for months before trial. But under the order it is possible that the period might extend beyond a few months. In those circumstances, I hope that the Government will agree that the State, if necessary, should finance special comforts for such prisoners who would not, after all, have had the benefit of a normal trial.
Hon. Members have also spoken of their anxieties that the ordinary rules relating to evidence seem to be in suspension. One can understand the reasons 86 why that should have to be so, even though one regrets it. Nevertheless, if the rules which normally apply in our courts are to be put aside, surely the rules which replace them should be specifically spelled out, so that both those who are prosecuting and those who are defending may know where they stand in relation to what evidence is or is not admissible. It is not enough merely to say that our normal rules will be suspended.
In certain circumstances witnesses can give evidence in secret, and not merely in private, without the accused having the right of reply. This, too, may be necessary, but we must keep on making it clear that it is not what we want for the permanent laws of our land—that we do not believe in it except in the greatest emergency.
Under Article 23 a suspect is entitled to be present at the tribunal on appeal only when fresh evidence is tendered. That is not enough. What of the relationship of fresh to old evidence? A suspect ought to be able to be present whenever his case is being formally examined by the appeals tribunal, apart from the deliberations of the tribunal on their decisions, which they must be able to proceed with in private.
Article 21 provides that the three members of the tribunal may act on a majority vote. Many people will regret that. The members of the tribunal are all to be experienced men in the law. I remember finding, when sitting as a magistrate in this country, that if one experienced magistrate disagreed with two colleagues on the question of guilt, often he could persuade his colleagues, or even if he did not a feeling of doubt remained afterwards.
Two votes to one is not enough, particularly when all the rules of evidence and the formalities of a normal trial have not been involved. Would it not be better to reserve to the Secretary of State —indeed, one cannot help feeling that this might be a necessity—specific powers for him to act on his own under the internment orders where he has special reasons? Why leave it entirely to a two-to-one vote? Why not retain the powers in respect of certain cases to the Secretary of State? At least it will be clear what has happened. The same applies to the Home Secretary where he retains the 87 powers, even after advice, to eject from this country anyone who has come from abroad to stay here and whom he believes to be undesirable.
I shall be grateful if as many of these specific points as possible can be examined—particularly those relating to the liberty of the subject; and his right, consistent with the safety of the State and its citizens, at least to the nearest approximation of a full and fair trial possible.
§ 6.13 p.m.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
The hon. Member for Chigwell (Mr. Biggs-Davison) said that a comparison of the Northern Ireland situation must be made not with that obtaining in this country but with that existing in the Republic of Ireland. He then drew some consolation from the fact that Mr. Lynch's Government had refused equally to bring repressive measures into operation in the Republic of Ireland, thereby justifying what is happening in the North.
I always thought the strength of the hon. Member's argument, and that of his hon. Friends, lay in the comparison not between the Republic and the six counties but between the six counties and this country; that what was good for this country would be good for the six counties, but that the reverse—what was good for the six counties was good for this country—did not apply.
It behoves the members of the Labour movement to take very seriously the introduction of secret courts sitting in private without publicity or the confrontation of witnesses, because those have been the first instruments used by tyrants to repress persons in the Left wing movement anywhere in the world. These are the first instruments used by tyrants throughout the world.
§ Mr. Loveridge
Does the hon. Member not feel that special courts or special powers are necessary at a time when so many murders are occurring and so much bloodshed is taking place?
§ Mr. McNamara
I am not missing that point. I shall be coming to it in one moment, because it is the nub of the question. It concerns what we stand for in terms of the liberty of the individual, apart from our political affiliations. It is 88 what this House and country stand for that matters.
I regret that when he went through the order cataloguing its faults and the points neglected, in the end my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) could not recommend us to vote against it. I do not think that my right hon. and learned Friend, for all his learning and experience has that degree of infallibility which I allow only to one other person. I doubt whether that person will vote against this measure this evening.
It is not the hon. Member for Antrim, North (Rev. Ian Paisley) in respect of whom I would not countenance such a degree of infallibility. Every pronouncement he has made indicates how fallable he is, and proves how wrong he has been on every possible issue considered by the House, except in his condemnation of violence.
I should like to turn to the issue of violence.
Mr. A. E. P. Daffy (Sheffield, Attercliffe)
§ Mr. McNamara
My hon. and Reverend Friend says "and internment". I would have said, "Yes, and internment", until today, when the hon. Gentleman spoilt his splendid record by not announcing that he would be voting against this measure.
I shall put forward claims on behalf of some people in Northern Ireland showing how basically British they are. We are looking at the situation from the point of view of what we do in a democracy. When democracy is threatened by violence, by terrorism, by murder, what do we say to meet it? What do we say to the people who say that only these Draconian measures can beat such terrorism, murder and bombing?
Since internment was introduced on 9th August 1971—as the Unionist Members and others who regret the decline and disappearance of Stormont have argued —violence has not greatly decreased.
If we are to look at this order as a means of preventing violence we can only consult the record over the past two years and say that it has failed. If it has failed, why should we continue with it? That is an argument of expediency, not of principle.
89 The Attorney-General sent me an answer to a Question on Friday, 10th November, 1972 which I consider to be of great importance. As his hon. Friend the Minister of State spent a great deal of time claiming that the reasons for the order were the intimidation of witnesses and jurists, and the difficulties experienced in obtaining convictions, I therefore must put to him—I hope that his right hon. and learned Friend, in replying, can meet this point—a Question that was asked on 16th November. I askedthe Secretary of State for Northern Ireland if he will seek to ascertain in how many of the cases of those persons in Northern Ireland awaiting trial following committal proceedings the delay is due to the difficulty of persuading witnesses to come forward, intimidation of witnesses or fear that a wrongful verdict will be brought in by the jury because of actual or feared threats of intimidation of the jury.The right hon. and learned Gentleman to whom the question had been transferred replied:I have been asked to reply.I am not aware of any case in which delay in bringing a person to trial following committal proceedings is due to any of the factors to which the hon. Member refers."—[OFFICIAL REPORT, 16th November, 1972; Vol. 846, c. 188–9.]That was the basis of the case of the hon. Gentleman in introducing this order —the intimidation of witnesses and juries.
As every person who knows about affairs in Northern Ireland realises, week after week we are experiencing cases of people, on every possible charge involved with terrorism, coming forward and being convicted by the courts. What is so special and peculiar about those individuals against whom evidence cannot be brought in public? Not only can evidence not be brought against them in public; in certain cases even the persons who are charged as commissioners to hear the offences are not to be told the source and origin of the evidence. That was the essence of the exchange I had with the Minister of State earlier, based on Lord Diplock's speech in the other place. So we shall have commissioners who will not be able to adduce the credibility of the witnesses. We have already heard the extraordinary case referred to by my hon. Friend the Member for Mid-Ulster (Miss Devlin), which showed the way these cases were going.
§ Mr. Maginnis
I am following the hon. Gentleman's remarks very closely. Does 90 not he agree that even the right hon. Member for Belfast, West (Mr. Fitt), who had an appointment with the Secretary of State not long ago, had that appointment postponed because it was announced in the Press previously?
§ Mr. McNamara
I am glad that the hon. Member for Armagh, South (Mr. Maginnis) has promoted my hon. Friend the Member for Belfast, West (Mr. Fitt) to membership of Her Majesty's Privy Council. I am not sure that that was a dignity he wanted. My hon. Friend assures me that there is no foundation in the statement made by the hon. Member for Armagh, South.
§ Mr. McNamara
I am sorry—Armagh. The main basis for the case comes away.
The next point we make is that these people are independent, but they are so independent that they will not necessarily be told the sources of the evidence coming against them. If the liberties we hold dear mean anything they mean that in times of stress and terror we have to say that these are things which are so important that we shall not bend from them. We have to say that the right of a person to be confronted by the evidence being used against him is there. The space, circumstances, time and origin of the evidence should be presented to him so that he has a right to refute it. But there is not only a duty to give the accused these opportunities; there is an even greater duty for the rest of the community to know what evidence is being used against individuals, and for the rest of the community to be satisfied that no person is having his liberty removed without the knowledge and consent of the community as a whole, knowing the nature of the individual. That also is being denied people. We have a duty towards the individual and the community to say that we cannot accept secret courts, secret trials and indefinite punishment.
It may well be said that we are arguing a particular case for the minority. What would happen if the majority suddenly 91 turned sour, and there were demonstrations when the White Paper about the future of Northern Ireland was published? Will not those powers then be needed? My answer is, "No" because on no occasion have I claimed for people with whom I am associated rights which I would not have claimed for or given to others.
That is the basis of my case, and that is why we cannot accept the order.
§ 6.23 p.m.
§ Mr. Merlyn Rees (Leeds, South)
I he Minister of State explained the purpose of the order and said that it revoked Regulations Nos. 11 and 12 of the special powers legislation relating to detention and internment. We on the Opposition side of the House still regard the ending of the whole of the Special Powers Act as vital when we come, as we hope, to the future form of government in Northern Ireland. It will have to be considered, however, in the face of murder and killing of both communities, of rocket attacks on soldiers, and of a state of affairs in Northern Ireland where we have to consider the rule of law in the most peculiar of circumstances. Those of my hon. Friends who feel very strongly about the order are not ignoring that fact, because many of them visit the Province very frequently. There are over 600 people dead, and of the troops who have been killed I am only too aware that the 100th soldier killed came from my constituency.
The procedures have been discussed, and I shall certainly not repeat the facts as they have been put forward in the debate. However, my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) and hon. Members on both sides of the House have asked searching and important questions about these procedures.
The order is a great improvement on the existing Special Powers Act by the fact that Regulations 11 and 12 are removed. This was said by the noble Lord, Lord Gardiner, who is known in this country for his wider work of law reform. He is known particularly in Ireland for his minority report to the Parker Report on interrogation. It was Lord Gardiner who said that there was a great improvement.
92 But there are serious questions, and I shall put one to the right hon. and learned Attorney-General. I do not want to add to those questions put by those who have very carefully considered the order in recent weeks. The hon. Member for Mid-Ulster (Miss Devlin) made a particular allegation about the method followed in the procedures concerning one person. We ask that that matter should be investigated, because it seems a most incredible way, even under the procedures contained in the order, for evidence to be given.
There are difficulties in the order. Would that there were a right of amendment. Would that we could give the order a thorough examination in a committee. I shall return to that point shortly.
The new procedure is still only quasi-judicial. But it is not a system of special courts. I should be surprised if in the cabinet a few months ago—in September —there were not some quite proper discussions about whether this form of tribunal should be exercising, perhaps independently, the powers of the Executive as opposed to the special courts, which would have been a different procedure. But the order is an improvement on the existing Special Powers Act. To defeat the order would leave the situation as it is now—the complete Special Powers Act. It would be wrong to do this. Although I am certainly not calling this in aid, when, for example, the National Council for Civil Liberties put forward its disagreement with the order a few days ago and at the end of it its news release said:The Government is asked to think again and to draw up a new Order which will offer the basic protections guaranteed by the European Convention on Human Rights, which is violated by the provisions of the existing Order'I simply reply that it is the long-term legislation, which is now not long delayed, that is the method by which the Government can deal with the whole of the Special Powers Act.
There are very great weaknesses in the order, but it is an improvement on the Special Powers Act, and if it were defeated we should have the Special Powers Act in the form in which it has existed for 50 years, with the additions made over the years; that would remain.
93 As it happens, it was a year ago when, with my hon. Friends and others, I returned from Long Kesh and spoke in the House on internment. Apart from the major question of internment as a whole, I argued the case for better procedures on internment. As The Times said, there were "disturbingly few safeguards". Would that, at the very least, this improvement had come a year ago. But it has come a year later and, oddly enough, nearly at the point when new procedures—the new constitutional arrangements for the whole of Northern Ireland—are to be given to us.
On internment as a whole under the Special Powers Act, since March there has been a great rundown in the large number interned. There is no doubt that the original internment of 9th August, 1971, over a year ago, was misconceived in both method and number, and it alienated the whole community.
I want briefly to look at the future, because it is in the context of the future that the order should be considered.
I start with a premise with which not everyone will agree, but which a visit to the Province a few days ago reinforced, that in Northern Ireland violence will not cease after the new constitutional arrangements are made. It has become a way of life in both communities. There are private armies who drill and shoot to kill. I discussed the whole matter with the hon. Member for Antrim, North (Rev. Ian Paisley) who is a leader of one of the parties. I hope that he agrees with me that it is a general fear—I would have hoped that it did not exist, but it does—that on White Paper day, when the Government reveal their thoughts about the future of Northern Ireland, there could well be an "uprising", in some form.
There are those who say to me, "One should not mention that". However, I believe that it is right to do so. We must face the facts of the situation and we must not close our eyes in a nice liberal fashion to the realities of the situation on the other side of the water.
But even the European Convention on Human Rights, in Article 15, recognises the right of society to take special action by derogation. The convention recognises that in modern society there are those who will seek to achieve their political ends by military means. I, of all people, as 94 someone who is proudly a social democrat, cannot forget that over the years when the people have been searching for liberal solutions they have sat back like frightened rabbits from time to time and have not faced the real affairs that exist in the world.
When the new legislation comes forward I believe that there will be an end of the Special Powers Act. We will have to face the fact that in Northern Ireland there are forces that have to be dealt with by the rule of law, but, heaven alone knows, that will be difficult to do in the full sense of the term. I say that because there is no point in pretending that suddenly, within the next eight weeks, all will be sweetness and light; that all we have to do is to find a constitution for Northern Ireland and the lion will sit down with the lamb. There is not going to be a time in the sweet by-and-by when all will be well. We must face the harsh reality, which I saw last week. The European Convention on Human Rights allows for society to take steps, and it would be as well if all of us in the House read the convention well in advance of the crunch point.
During the last year I have considered the whole question of terrorism and the law. In my view the replacement of the Special Powers Act must be considered in the context of a Bill of Rights. The hon. Member for Belfast, West (Mr. Fitt), who is the leader of the Social Democratic and Labour Party, might recall that when his party saw the Prime Minister, I think it was, and the Secretary of State for Northern Ireland, he also later saw the Leader of the Opposition and myself. I expect the hon. Gentleman will recall that we discussed this question. It was a fruitful discussion. I wrote to the hon. Gentleman, as leader of the SDLP a few days later, saying that he would recall that we introduced into our discussion the ending of the Special Powers Act. I said:Basic to the whole argument is my view that the ending of the Special Powers Act is vital alongside that of constitution building, and consequently that the Government should introduce in the new session a Bill to end this Act. Before that time there should be set up a Commission of eminent lawyers from the Commonwealth, Great Britain, Northern Ireland and Eire, for example, to consider the whole question of a Bill of Rights legislatively enacted for Northern Ireland to enshrine certain basic principles of civil liberties in the Province. In the same context this Commission 95 would consider also the question of the maintenance of the rule of law in circumstances such as those that have prevailed in Northern Ireland in recent years.It may well be that that view influenced the Government in the setting up of the Diplock Commission. However, I must make it clear that the commission was set up not in the context of the Bill of Rights but in a much narrower context. Our discussion was a much wider consideration of the problem. It is for that reason that I appeal to the Government —accepting, as I do, that the order is temporary—not to decide on Diplock, which is in a narrow legal framework, in isolation from the White Paper. I ask the Government to consider it and to fit it in with the White Paper discussion. The White Paper will surely announce the ending of the Special Powers Act. In that context my right hon. and learned Friend the Member for West Ham, South has referred to the Fabian pamphlet on emergency powers. The pamphlet emanates from academics in Belfast and is worthy of consideration.
I ask the Government not to decide on Diplock in isolation. Surely they will announce the ending of the Special Powers Act, and surely they will introduce a Bill of Rights. It is in that context that the treatment of those who seek to overturn the State should be considered. Not the least value of that approach is the full discussion through an Act of Parliament which will be able to take place in Committee and in the House. The inability to do that is one of the effects of introducing these measures by an order.
As I have listened to the Government I have tried to work out, why it is that in December—l5 or 16 months later—we should have the order near to the time when the Government's wider thinking will be revealed to us. Above all, the Bill of Rights will give new standards to Northern Ireland. It is only in that context that we can consider the steps to be taken against those who chose to make political change by shooting and killing. But the Government must proceed within the European Convention on Human Rights. Under the convention the Government cannot do as they like. They must justify to the convention the steps that they take.
96 I regard this debate as an interim debate on a wider matter than the order. The order relaxes a bad system of law—the Special Powers Act. It is that Act being swept away that should matter, and it is for that reason that I advise my hon. Friends not to vote against the order. I ask the Government to give special thought to the way in which they proceed. The White Paper must propose the end of the Special Powers Act, and the enactment of a Bill of Rights. Its announcement will give the House an opportunity to look at the resulting legislation at length—an opportunity which we have not had with the order. It is, as the noble Lord, Lord Gardiner said, a step forward. I do not advise my hon. Friends to vote against a step forward.
§ 6.40 p.m.
§ The Attorney-General (Sir Peter Rawlinson)
The hon. Member for Leeds, South (Mr. Merlyn Rees) has spoken trenchantly about the realities of what he has seen in Northern Ireland during the past months in which he has spoken for the Opposition on the affairs of Northern Ireland. I have seen my share of the realities of life in the Province. The hon. Gentleman spoke of the difficulties which face the law in such a situation —difficulties which immediately pose special problems to ordinary citizens, ordinary legislators and ordinary lawyers. No one can examine this order without being conscious of the context in which it is produced and of what goes on day in and day out in the Province, with people experiencing attacks on themselves and their property. As the hon. Member for Antrim, North (Rev. Ian Paisley) said, it is a dark background.
Of course there is a desire amongst us all to see the ordinary courts of law operating in normal circumstances and applying the ordinary rule of law. As the hon. Member for Leeds, South has pointed out, the noble and learned Lord, Lord Gardiner, has said that the order is an improvement and that he has no objection to it. It is right to bear in mind what the judges, the legal profession, the witnesses and the juries do in Northern Ireland. Let us remember what they have to go through. Several magistrates have been attacked. One was gunned down in the streets of Belfast shortly after having served a term as a 97 Crown prosecutor. I can say from first- class experience how the judges, the legal profession, the witnesses and the juries have been carrying out the tasks imposed upon them with great courage and great integrity.
Of course the policy must be, and must remain, that, wherever possible and wherever there is admissible evidence in accordance with the rules we have to apply, persons should be brought before the courts for committing criminal offences. That is the proper place for persons who have committed crimes to be brought. That is why we established the position of Director of Public Prosecutions in Northern Ireland, and it cannot be over-emphasised that lie is a person of complete impartiality, of great distinction and is held in universal regard. His functions were hitherto the responsibility of the Attorney-General of Northern Ireland, but the DPP is now the principal prosecuting authority, answerable to me, and I am answerable to Parliament. It is his duty to prosecute on admissible evidence and to bring before the courts those against whom he has evidence.
Let us consider the record. Between 2nd October and 24th November 1972, there were 72 defendants in prosecutions on indictment in the Belfast City Commission for terrorist types of offence. Of these 72, a total of 49 were convicted, six were found not guilty, five were found not guilty on the direction of the judge, there were 10 nolle prosequis and two were the subject of jury disagreements. That gives some idea of what the normal court processes are doing in the case of crimes committed against the people of Northern Ireland. Those persons found guilty and convicted of such offences are being sentenced to severe terms of imprisonment. One person has received life imprisonment, four have been sentenced to 14 years' imprisonment, seven to 12 years' imprisonment, four to 10 years' imprisonment, three to eight years' imprisonment, seven to seven years' imprisonment and 23 to six years' imprisonment or less.
§ Mr. Fitt
Is the right hon. and learned Gentleman aware of a case involving a defendant by the name of Francis McQuigan? Mr. McQuigan was brought before a court in Northern Ireland. In open court, before a judge 98 and jury appointed by this House, he was found not guilty of all charges. Yet on being released he was detained and interned. Can the right hon. and learned Gentleman therefore say whether this House is prepared to accept the verdict of a judge and jury as opposed to that of a commissioner?
§ The Attorney-General
It is not possible for me at this stage to deal with individual cases. I hope that the hon. Gentleman will forgive me if I say no more on that. I was pointing out that wherever possible and with great courage and integrity the courts have been doing their duty. The situation in which the courts are having to work is one in which this year 3,296 people up to the end of October have been treated in hospital as a result of civil disturbances; it is a situation in which rockets in addition to other weapons have been used to attack persons and property.
The fact is that situations do exist where the State has to take into its own hands powers which can only be described as extra-judicial. We have made clear that what we are proposing to the House in the order is an extra-judicial proceeding. We do not suggest that it is not. But there is a state of emergency, and the whole House recognises that there is a situation in Northern Ireland where not only is the judiciary under attack but witnesses are intimidated—people who would, but for such intimidation, come forward to give evidence. There has also been report to me of fears expressed by persons who might otherwise be serving on juries.
It is not right that we should disregard the lives and the fears of such people. It is in such an emergency and to preserve the life of its citizens that the State has to take temporarily—and they are temporary—the extraordinary powers in this order. But, of course, these powers have been held previously under the Special Powers Act to answer the circumstances of particular times. It is only against the whole background of the situation in Northern Ireland that we can in fairness examine the order.
§ Mr. McNamara
In view of what the right hon. and learned Gentleman said earlier, will he now reply to the point I raised about his answer of 16th November.?
§ The Attorney-General
The hon. Gentleman asked me about delays between committal and trial. The intimidation of witnesses has not as far as we know caused such delays. But intimidation has often prevented some prosecutions from being brought at all, because of the failure to get witnesses to come forward. However robust one may feel sitting in this Chamber, if one is a witness to an incident and may be able to identify a certain person, it calls for a considerable amount of courage in Northern Ireland to come forward publicly, give evidence and stand up in the witness box and say "That was the person who shot down the victim". We can afford sometimes here to be a little too brave. I want to pay tribute now to those people who have put the interest of society as a whole before themselves.
What the Government seek by this order is to establish a process which, whilst inevitably it is extra-judicial, preserves standards of procedure and of common fairness which make it acceptable. Within the limits in which the law has to operate in Northern Ireland, we have tried to make its application fair and reasonable.
The order provides that where it appears to the Secretary of State that a person is suspected of having been concerned in the commission of terrorism he may make an interim custody order. This involves terrorism, which means the use of violence for political ends, whether violence against an individual or a group, violence for the purpose of putting the public or any section of it in fear. It must appear to the Secretary of State that the person has been concerned in the commission or attempted commission of acts of terrorism, and Article 4 brings in those whom it is suspected have been concerned.in the direction, organisation or training of persons for the purpose of terrorism".One of the Principal reasons for it being only the Secretary of State under Article 4(1) whereas under Article 4(2) an interim custody order can be made also by a Minister of State or by an Under-Secretary of State is the need for speed which sometimes arises. The Secretary of State is not always there, but the Minister of State and the Under-Secretaries can take this very preliminary 100 step. I assure the House that rigorous inquiry is undertaken before this step is taken. As will be seen from the rest of the order, this is the only stage at which the Executive in the shape of the Minister intervenes in the process.
§ Mr. Biggs-Davison
Does this mean that a Minister so designated outside the Northern Ireland Office would be able to act?
§ The Attorney-General
In practice it will mean only the Secretary of State, the Minister of State or any Under-Secretary of State in the Northern Ireland Office, because they will be the Ministers in Northern Ireland.
All that they do at this stage is to make the interim custody order. Where it so appears, and when that order has been made, limited to 28 days, the chief constable has the responsibility of referring it to the commissioner, or the person is released. If there is any unreasonable or improper delay between such a reference and the hearing so that weeks or months pass and a person who has had an interim custody order imposed against him does not appear before the tribunal, there exist the general supervisory powers of other courts which can ensure that this process is carried out in accordance with the order.
It is the chief constable who is involved at this stage, not the Executive. I ask the House to note that the Director of Public Prosecutions does not get involved in these preliminary matters. He is the officer responsible for prosecution before the courts. This is an extra-judicial process. The duty of the Director of Public Prosecutions arises when cases are brought before the courts; in other words, when there are judicial proceedings.
§ Sir Elwyn Jones
Would it not be greatly reassuring if the Director of Public Prosecutions, to whose integrity and independence the Attorney-General has paid tribute, as I do, were interposed in this machinery instead of it being left to the chief constable, a purely executive officer?
§ The Attorney-General
Because the Director of Public Prosecutions is responsible for prosecutions before the courts and for exercising the discretions which he must exercise, it is right that he should be kept separate and that there 101 should be no question of his decisions and his impartiality being involved in an extra-judicial process.
Once a reference has been made by the chief constable, the hearing by the commissioner proceeds. This process will bear comparison with what went before, taking into account the problems which were posed so graphically by the hon. Member for Leeds, South. In view of the provisions as regards the evidence which must be adduced, the representation by counsel and solicitor, and the power to question anybody, I believe that the House will accept that contained within the framework of the order is as fair a procedure as is possible to establish.
It is right that it is hearsay evidence which may from time to time be put before the commission. Such is the reality of the danger which can arise to persons who are able to give information that the commissioners may not be able to have direct evidence from the person who is providing the evidence.
The order provides that the commissioner must be satisfied. The burden of proof is that of a man who must be satisfied, which is the criminal standard of proof. Only when the commissioner has been so satisfied that the person was concerned in the commission or attempted commission of an act of terrorism and that his detention is necessary for the protection of the public does the commissioner make the detention order.
§ The appellate procedure is not a rehearing. There is the record and there is the opportunity to have fresh evidence.
§ "Escape" includes an attempt to escape. The hon. Member for Antrim, North need have no anxiety, because "attempt" here is the same as it is in the general criminal code. Where an offence is created an attempt also becomes an offence.
§ So far these commissioners, who have been sitting only since 7th November, have completed 125 cases. Eleven cases are partly heard and have been adjourned. The cases yet to be heard are of 31 former internees and 119 former detainees.
§ Forty-nine of the cases that have been heard have resulted in release; 76 have resulted in detention orders. Forty-five men are held under fresh interim custody orders made since 7th November, of whom 33 have so far been referred by the chief constable to the commissioners.
§ The hon. Member for Leeds, South rightly said that there is the power of derogation under the European Convention on Human Rights. That power of derogation in such circumstances makes it essential and imperative to have these powers and procedures, which are not only fair and just but are a great improvement on that which went before.
§ Question put:—
§ The House divided: Ayes 179; Noes 32.103
|Division No. 30.]||AYES||[7.0 p.m.|
|Adley, Robert||Chichester-Clark, R.||Gorst, John|
|Alison, Michael (Barkston Ash)||Churchill, W. S.||Gower, Raymond|
|Amery, Rt. Hn. Julian||Clegg, Walter||Gray, Hamish|
|Archer, Jeffrey (Louth)||Cooper, A. E.||Green, Alan|
|Awdry, Daniel||Cordle, John||Griffiths, Eldon (Bury St. Edmunds)|
|Baker, Kenneth (St. Marylebone)||Corfield, Rt. Hn. Sir Frederick||Gummer, J. Selwyn|
|Baker. W. H. K. (Banff)||Cormack, Patrick||Gurden, Harold|
|Batsford, Brian||Costain, A. P.||Hamilton, Michael (Salisbury)|
|Bennett, Dr. Reginald (Gosport)||Critchley, Julian||Hannam, John (Exeter)|
|Benyon, W.||Crouch, David||Harrison, Col. Sir Harwood (Eye)|
|Berry, Hn. Anthony||d'Avigdor-Goldsmid, Sir Henry|
|Biffen, John||Dean, Paul||Haselhurst, Alan|
|Biggs Davison, John||Dixon, Piers||Hastings, Stephen|
|Blaker, Peter||Dodds-Parker, Douglas||Havers, Sir Michael|
|Body, Richard||du Cann, Rt. Hn. Edward||Hawkins, Paul|
|Boscawen, Hn. Robert||Dykes, Hugh||Hiley, Joseph|
|Bowden, Andrew||Eden, Rt. Hn. Sir John||Hill, John E. B. (Norfolk, S.)|
|Braine, Sir Bernard||Eyre, Reginald||Hill, James (Southampton, Test)|
|Bray, Ronald||Farr, John||Holland, Philip|
|Brinton, Sir Tatton||Finsberg, Geoffrey (Hampstead)||Hordern, Peter|
|Brown, Sir Edward (Bath)||Fisher, Nigel (Surbiton)||Hornsby-Smith,Rt.Hn.Dame Patricia|
|Bruce-Gardyne, J.||Fletcher-Cooke, Charles||Howell, David (Guildford)|
|Burden, F. A.||Fookes, Miss Janet||Howell, Ralph (Norfolk, N.)|
|Butler, Adam (Bosworth)||Fortescue, Tim||Hutchison, Michael Clark|
|Campbell, Rt.Hn.G. (Moray & Nairn)||Fry, Peter||Irvine, Bryant Godman (Rye)|
|Carr, Rt. Hn. Robert||Gibson-Watt, David||James, David|
|Chapman, Sydney||Goodhew, Victor||Jennings, J. C. (Burton)|
|Jopling, Michael||Noble, Rt. Hn. Michael||Spence, John|
|Keilett-Bowman, Mrs. Elaine||Normanton, Tom||Sproat, Iain|
|King, Evelyn (Dorset, S.)||Onslow, Cranley||Stanbrook, Ivor|
|King, Tom (Bridgwater)||Osborn, John||Stewart-Smith, Geoffrey (Belper)|
|Kinsey, J. R.||Page, Rt. Hn. Graham (Crosby)||Stokes, John|
|Kirk, Peter||Paisley, Rev. Ian||Stuttaford, Dr. Tom|
|Knox, David||Peel, John||Sutcliffe, John|
|Lamont, Norman||Percival, Ian||Taylor,Edward M.(G'gow,Cathcart)|
|Lane, David||Powell, Rt. Hn. J. Enoch||Taylor, Frank (Moss Side)|
|Le Marchant, Spencer||Price, David (Eastleigh)||Tebbit, Norman|
|Lloyd, Rt.Hn.Geoffrey (Sut'nC'field)||Proudfoot, Wilfred||Thomas, John Stradling (Monmouth)|
|Longden, Sir Gilbert||Pym, Rt. Hn. Francis||Thomas, Rt. Hn. Peter (Hendon, S.)|
|Loveridge, John||Quennell, Miss J. M.||Thompson, Sir Richard (Croydon,S.)|
|Luce, R. N.||Raison, Timothy||Trafford, Dr. Anthony|
|MacArthur, Ian||Rawlinson, Rt. Hn. Sir Peter||Trew, Peter|
|McLaren, Martin||Redmond, Robert||Tugendhat, Christopher|
|McNair-Wilson, Michael||Reed, Laurance (Bolton, E.)||Turton, Rt. Hn. Sir Robin|
|McNair-Wilson, Patrick (New Forest)||van Straubenzee, W. R.|
|Madel, David||Renton, Rt. Hn. Sir David||Vaughan, Dr. Gerard|
|Maginnis, John E.||Rhys Williams, Sir Brandon||Walder, David (Clitheroe)|
|Marten, Neil||Ridley, Hn. Nicholas||Waiters, Dennis|
|Mather, Carol||Ridsdale, Julian||Ward, Dame Irene|
|Maude, Angus||Roberts, Wyn (Conway)||Warren, Kenneth|
|Mawby, Ray||Rodgers, Sir John (Sevenoaks)||Weatherill, Bernard|
|Maxwell-Hyslop, R. J.||Rossi, Hugh (Hornsey)||White, Roger (Gravesend)|
|Meyer, Sir Anthony||Rost, Peter||Wilkinson, John|
|Mitchell,Lt.-Col.C.(Aberdeenshire,W)||Russell, Sir Ronald||Winterton, Nicholas|
|Moate, Roger||St. John Stevas, Norman||Woodhouse, Hn. Christopher|
|Money, Ernie||Scott, Nicholas||Woodnutt, Mark|
|Monks, Mrs. Connie||Scott-Hopkins, James||Worsley, Marcus|
|Monro, Hector||Shaw, Michael (Sc'b'gh & Whitby)|
|Montgomery, Fergus||Shelton, William (Clapham)|
|More, Jasper||Skeet, T. H. H.||TELLERS FOR THE AYES:|
|Morrison, Charles||Soret, Harold||Mr. Marcus Fox and|
|Murton, Oscar||Speed, Keith||Mr. Kenneth Clarke.|
|Allaun, Frank (Salford, E.)||Fletcher, Ted (Darlington)||Morris, Alfred (Wythenshawe)|
|Atkinson, Norman||Hamling, William||O'Halloran, Michael|
|Barnett, Guy (Greenwich)||Heffer, Eric S.||Roderick, Caerwyn E.(Brc'n&R'dnor)|
|Booth, Albert||Huckfield, Leslie||Sandelson, Neville|
|Davidson, Arthur||Jenkins, Hugh (Putney)||Skinner, Dennis|
|Davis, Clinton (Hackney, C.)||Kaufman, Gerald||Stewart, Rt. Hn. Michael (Fuiham)|
|Davis, Terry (Bromsgrove)||Kerr, Russell||Wainwright, Edwin|
|Deakins, Eric||Latham, Arthur||Whitehead, Phillip|
|Devlin, Miss Bernadette||Lipton, Marcus|
|Duffy, A. E. P.||Marsden, F.||TELLERS FOR THE NOES:|
|English, Michael||Marshall, Dr. Edmund||Mr. Kevin McNamara and|
|Fitt, Gerard (Belfast, W.)||Mikardo, Ian||Mr. A. W. Stallard.|
§ Question accordingly agreed to.
That the Detention of Terrorists (Northern Ireland) Order 1972 (S.I., 1972, No. 1632), a copy of which was laid before this House on 6th November, be approved.