NORTHERN IRELAND (Hansard, 23 February 1972)

§ The Secretary of State for the Home Department (Mr. Reginald Maudling)
With permission, Mr. Speaker, I wish to make a statement.
When the Army was sent to Northern Ireland in support of the civil power in 1969 it was assumed that it would operate under the powers conferred on it by regulations made under the Northern Ireland Civil Authorities (Special Powers) Act. This assumption was challenged in a habeas corpus application last summer in our own High Court when the view held by the Government as to the validity of these powers was upheld by Mr. Justice Ackner.
This morning the Northern Ireland High Court has delivered a judgment which declared, in effect, that these regulations are ultra vires insofar as they confer powers on members of the Armed Forces.
The particular regulation challenged in the case before the Northern Ireland High Court is one which empowers a commissioned officer to call on an assembly of persons to disperse. But it appears that the court's judgment would equally affect other regulations, including, for example, the power to stop and search people and vehicles suspected of carrying firearms or explosives.
It is clearly a matter of great urgency to ensure that the Army has all the powers it needs and which succeeding Governments have recognised to be necessary in order to deal with the terrorist campaign. It is also necessary to ensure that members of the Armed Forces would not be liable to any legal proceedings based on this technical point in respect of the exercise of these powers since 1969. There is a right of appeal from the judgment of the Northern Ireland High Court to the House of Lords but it would inevitably take some time before such an appeal could be heard. My right hon. and learned Friend the Attorney-General will therefore later today introduce a short Bill which the House will be invited to proceed to consider through all its stages forthwith. The sole effect of the Bill will be to declare that the law so far as the powers of the Armed Forces are concerned is and always has been what it has hitherto been believed to be.
1286 Prints of the Bill cannot, obviously, in the circumstances be available before the Bill is introduced, but copies of the draft Bill will shortly be available in the Vote Office.

§ Mr. Harold Wilson
The House will recognise the situation in which the Government have been put by this ruling of the Divisional Court in Belfast this morning, which is as much of a surprise to my right hon. Friends, not least my right hon. and learned Friend, as to right hon. and right hon. and learned Gentlemen opposite. The Prime Minister, if he will allow me to say this, was good enough to alert me two days ago to the possibility that there might be this judgment and informed me of the state of contingency planning.
Both Governments—I emphasise, both Governments—which have been responsible for the use of British troops to preserve peace in Northern Ireland had assumed on the best legal advice available, to us and to the recent Government, that our action in putting troops in and with the powers which they were given—for example, to deal with search of vehicles suspected of carrying gelignite or action to deal with snipers—was legal. This was the view of the then Government—and of the present Government—when we put in the troops in 1969, and, indeed, when we gave them supreme control of security in Northern Ireland. The view of both Governments seemed to have been confirmed by the decision of the British High Court in the judgment of Mr. Justice Ackner last September.
I recognise that this is difficult for the Government in the sense that if action is not taken immediately it could be alleged that British troops called in to deal with a particular security situation this evening would be acting illegally in so far as the judgment of the Divisional Court is the last word on the subject at the present time. There could even be people who would use the action of the Divisional Court to incite people to an orgy of violence in the hope that the troops would tonight be inhibited in dealing with it or, if they did, they could say that the troops could be charged with acting illegally pending appeal or pending action taken by this House.
In these circumstances it would be intolerable if there could be any doubts 1287 about the ability of our troops to deal with the situation, particularly after that evil crime yesterday which the whole House condemns, and with its effects on totally innocent people—even more innocent than the troops, in the sense that the troops act on Government orders. It would be intolerable if, for example, tonight our troops were not able to search vehicles which might be carrying gelignite or might be on similar senseless or violent operations.
Equally, the Government will recognise the position in which the House is put by the Bill. I am sure they do. To ask the House at any time to take in one day all the stages of a Bill affecting civil rights is a very, very big thing to ask of the House. I do not underrate the Government's acceptance of that fact. Equally, to ask that any Bill which contains retrospective powers, even if it were going through by the normal processes, should be taken in one day, is a great deal to ask of this House. So far as I am concerned, I would like a little time to study the terms of the Bill, which, I think, is not yet available to the House, though as an act of courtesy—I hope I may mention this—I have been supplied with a copy, and I am taking the advice of my right hon. and learned Friend on this.
The Government will recognise that a Bill of this kind could lead to a very wide debate. It would be in the minds of many of my hon. Friends—indeed, perhaps, in the minds of myself and others on the Front Bench—that it is very difficult to give assent to the Bill without raising the wider issue of the transfer of security from Stormont to this House. Amendments to that effect might be precluded by the terms of the Bill, its Short Title, and the rest of it. I do not want to argue about this, though I think that if we were able to debate the Bill in the normal circumstances with all the facilities for debate this is a matter which many of my hon. Friends would want to raise, and some, indeed, might want to move Amendments. I believe the urgency of the situation is such that, though we have not yet had the Government statement—although it has already been on the B.B.C., which I somewhat regret—if we are to take the Bill tonight I would give my reasons for thinking that 1288 the Government have a right to ask for it tonight but I would hope that it would be on three understandings.
First, we must study the terms of the Bill. It cannot be rushed through in this way without proper study. I think, secondly, that there should be a debate to include the rights of hon. Members to raise some of the broader aspects under which our troops are operating. This may seem an odd legislative proposal to make, but I would ask that time should be provided for that after the Bill has gone through if it is to go through so quickly. The Government ought to provide time to debate issues arising out of the Bill as well as any Government announcement or initiative about what should take place in Northern Ireland thereafter, not least because the Government are taking private Members' time from the defence debate as a result of the introduction of the Bill. Therefore, I hope the Government will agree that we shall have an agreement through the usual channels for extra time to debate the Northern Ireland situation in the light of this unfortunate incident, which is not the fault of either Government, and to validate a position which we all understood to be the law.
Thirdly, if the Bill goes through we are conferring retrospective powers to validate the position of both Governments, to validate what we all understood to be the law and what, with all respect, should have been the law if it was not. I am certain that this Government and the previous Government would, if they had found that they were putting troops in this position have taken speedy action to change the law when there was time.
Since we are having to act retrospectively to re-create a situation which we all thought existed, and since the powers which are now in question have been used in the controversial context of internment, I hope that we shall have an assurance from the Government not only that the charges against Mr. John Hume will be dropped—I think that they are probably quashed by the decision—but that no new charges will be preferred against anyone in respect of the situation which obtained before today. In other words, if there is to be retrospective validation there must be retrospective immunity in respect of other cases which 1289 would have been quashed by the Belfast court if we had not introduced this Bill today.

§ Mr. Maudling
I am grateful to the right hon. Gentleman for the way in which he has approached this problem, which presents, as he rightly said, difficulties to both sides of the House in that the situation which we thought to be the case has been held by the court not to be the case in law, although on appeal to the House of Lords the decision might be the same as that of Mr. Justice Ackner. The case of Mr. Hume is quashed, and that is the end of it.
On the question of discussion in the House, I understand that my right hon. Friend the Leader of the House will be making a short Business Statement to deal with the matters to be discussed.
On the broad issue which is often raised, whether the powers of law and order should be transferred from Stormont to Westminster, this is a wider issue which should be discussed in a wider context. It will not be prejudiced in any way by the Bill. What would be prejudiced by the absence of the Bill is the authority of our own Army to deal with the bombers.

§ Mr. Wilson
The right hon. Gentleman has not dealt with two points. He has given his statement of the legal position of Mr. Hume, although we are all in some doubt now what is the legal position of anyone. Will he give an assurance, in so far as he can bind the Stormont Government—and if not, undertake to consult them—that there will be no more prosecutions under the law which the House is being asked to reconstitute today, under which law, I understand, Mr. Hume would have been found guilty?
Secondly, I do not find the right hon. Gentleman's answer about the debate, particularly in relation to the transfer of security, 100 per cent. satisfactory. He said that the Bill would not prejudice our debate. In the ordinary course of events if there was not this acute timetable, which I accept, the House would be debating this issue tonight, and the proceedings on the Bill will take quite a long time because of that. Will the Home Secretary ensure that time is provided afterwards, ahead of our normal rights? If he will give that assurance, the usual channels can discuss the time 1290 table, so that the broader aspects of the Bill can be considered at a later stage if we do our best to get the Bill through on the narrow point that is raised by the decision of the Belfast court.

§ Mr. Maudling
Yes, I certainly give the right hon. Gentleman the assurance he wants on the second point. His first point is a legal matter, and I ask him to await the Attorney-General's speech this evening, when he will deal with it.

§ Mr. St. John-Stevas
Will my right hon. Friend accept that, despite the serious constitutional points that have been raised by the Leader of the Opposition, the majority of hon. Members will think that the gravity of the situation is such that the Government are quite right to ask the House to take this legislative action? Indeed, not to have done so would have been a dereliction of duty, since it would be intolerable to add to the almost impossible burden on British troops in Northern Ireland the additional burden of possible illegality.

§ Mr. Maudling
I think that is so.

§ Mr, Thorpe
The Home Secretary may be aware that the Leader of the House was courteous enough to tell me of the intentions of the Government, and, therefore, I, too, have given the matter some consideration. May I ask him four questions, which he may prefer to ask the Attorney-General to answer?
First, for the record, is the right hon. Gentleman not wrong in saying that the decision of the court indicates that the regulations are ultra vires? They are not ultra vires; it is merely that the court has suggested that those powers do not extend to protection for the Armed Forces, and they are, therefore, not as extensive as was thought. I think the Home Secretary will agree that we should get the record right.
Second, does the Home Secretary agree that the basis of the judgment is that, unless it be reversed, the powers under which our Forces were sent to Northern Ireland and subsequently maintained there have been defective for giving them adequate protection? Therefore, what we are doing in effect is to protect individual members of the Forces.
Third, will the right hon. Gentleman look at the Downing Street Declaration 1291 in which the General Officer Commanding was given control of the deployment and tasks of the R.U.C. and command and control of the Ulster Special Constabulary? It could be that both those bodies have been operating under orders which are themselves illegal on the basis of this judgment and, therefore, that the Act of indemnity might have to be wider than is at present envisaged.
Fourth, if the Special Powers Act has been introduced by virtue of the Prerogative as opposed to the normal legislative process in Stormont, a certificate under Section 11 of the Crown Proceedings Act, 1947, may be sufficient to give protection to our Armed Forces.
Finally, whilst I accept the point made by the Leader of the Opposition that it may not be appropriate for a general debate to take place, will the Home Secretary accept that many hon. Members take the view that this emphasises the point that security in all its aspects should be the total responsibility of the Westminster Parliament?

§ Mr. Maudling
The answer to the fourth question I must leave to my right hon. and learned Friend the Attorney-General. On the first point, what I said in my statement was: …these regulations are ultra vires in so far as they confer powers on members of the Armed Forces. I think that answers the point. The answer to the second point is "Yes", and to the third point "No".

§ Mr. Orme
I welcome the Home Secretary's statement that the charges against Mr. John Hume are to be dropped. I assume that that also goes for Ivan Cooper and other defendants. They are not terrorists but elected representatives of the Catholic community who were taking part in a civil demonstration—[HON. MEMBERS: "Illegal."]—which was not connected in any way with violence or with the I.R.A.
I understand the difficulties which the Home Secretary faces, but he has to measure the effect that the Bill will have on the Catholic community who, having been urged to use legal means, find, when they have won a case in the courts, that we then change the law. There may be justification for the case that the Home 1292 Secretary has made, but I ask him not to underestimate the effect that this legislation might have on the Catholic community.
This is not a party political point, but I ask the Home Secretary to take very seriously what was said by my right hon. Friend the Leader of the Opposition and by the Leader of the Liberal Party on the transfer of security. If security in all its aspects were to be transferred fully to the control of Britain, this would reassure the Catholic community.

§ Mr. Maudling
On the first point, I understand that the case against all involved has been quashed, and, its having been quashed by the court, that is the end of the matter. On the second point, I know that there are considerable feelings one way or the other regarding the transfer of responsibility for law and order. This is a very big issue, indeed, which must, and can, be discussed only in the broad context of a total settlement for Northern Ireland. All I was saying earlier was that by passing the Bill tonight we shall not prejudice the argument on that matter one way or the other.

§ Mr. Deedes
I fully accept the urgency of this matter but, following the points made by the right hon. Gentleman the Leader of the Opposition, may I ask what are the chances of the Government making available to the House by seven o'clock this evening not only a transcript of this short Bill but at least a summary of the judgment which has led to this situation so that hon. Members may at least have some awareness of what precisely is at issue?

§ Mr. Maudling
I understand that the judgment runs to some 30 pages, and, since it was delivered only this morning, it is not physically possible to produce a summary in such a short time. My right hon. and learned Friend the Attorney-General will be able to indicate in his speech tonight the main basis of the judgment. The effect of the judgment is clear, and what we have to deal with in this House is the effect of that judgment on the ability of the Armed Forces to deal with the terrorist campaign.

§ Mr. Hattersley
Will the Home Secretary accept that many hon. Members who are deeply critical of the Government's 1293 policy in Northern Ireland nevertheless regard it as essential that any ambiguity about the troops' rôle in Northern Ireland should be removed and will regard it as their duty to support the Bill this evening? Notwithstanding that, may I make two points for the right hon. Gentleman to consider between now and the time when the Bill is introduced? First, could he go a little further on the retrospective powers in the Bill and the retrospective intentions of the Government under any power which the Bill may confer? Secondly, could he make clear that many of the tasks carried out by the troops, despite this surprising ambiguity, remain their right according to the common law under which we believed we were sending troops to Northern Ireland in the first place?

§ Mr. Maudling
I am grateful for what the hon. Gentleman said at the beginning of his remarks. On his second point, the troops still have their common law powers, but these are very limited—for example, in regard to carrying out searches for gelignite in motorcars and that sort of thing. The purpose of the Bill is to declare that the law is what the House has always believed it to be and what the High Court in England believes it to be. That is what the Bill will declare—no more and no less than that. It will at the same time provide protection for members of the Armed Forces, which since 1969 have been operating under proper instructions in the belief of this Government and the previous Government that this was the law.

§ Mr. Tapsell
Although I am sure the whole House appreciated what the right hon. Gentleman the Leader of the Opposition said in his opening remarks—and I do not wish to misrepresent him—there were certain remarks which he made at the end about immunity which were unclear to me. May we have an assurance that there is no question of our granting immunity to people who have committed illegal acts, or terrorism, before today?

§ Mr. Maudling
I do not think that was the point at all. The point here involves the protection of members of the Armed Forces in carrying out their duties as properly ordered in the general belief of this Government and the previous Government that this was the lawful situation.

§ Mr. Paget
The Government have been surprised by the ambiguity of the law in the interpretation of the courts. Will they bear in mind that when a great part of our law comes to be interpreted by an alien court used to a different form of legislation, the position in which the Government find themselves today will be very common in future? Would they consider introducing some general provision to deal with the mess in which they find themselves?

§ Mr. Maudling
The hon. and learned Gentleman is drawing me into rather wider matters.

§ Mr. Hugh Fraser
Would my right hon. Friend make clear that this proposed legislation in no way increases either the powers or the immunities of our troops in Northern Ireland? This will give some reassurance, lest this be misinterpreted in the Press.

§ Mr. Maudling
Yes, Sir; I certainly give a categorical assurance on that.

§ Mr. McNamara
We all appreciate the need for this legislation, but will the Home Secretary bear in mind that much of the effort that went into this litigation in the Irish courts was aimed at the whole principle of the Special Powers Act and the various powers exercised by virtue of it, powers which many people both in this country and in Northern Ireland find reprehensible? Will he also give an undertaking that any persons who might be guilty of an offence, or who might be charged with an offence, of a similar nature to that with which Mr. Hume was charged—for example, people who assembled at Newry and at Enniskillen, and various other persons involved in assemblies of that nature—will also have their cases quashed because under the law as it stands, until we pass the Bill and until the House of Lords decides this matter, they will be entitled to an acquittal?

§ Mr. Maudling
What the Bill will do—and my right hon. and learned Friend will be dealing with the legal points later—is to declare that the law is, and always has been, what Parliament intended it to be.

§ Sir H. Legge-Bourke
In view of the helpful attitude adopted by the Leader of the Opposition on this matter, could 1295 not a message go out from this House to Her Majesty's troops in Northern Ireland telling them that this House is united in ensuring that the troops act in complete conformity with the law and that they have the House behind them in all they do?

§ Mr. Maudling
That would be very fair and right.

§ Mr. Sheldon
But this House must always be very jealous of its rights when the Home Secretary comes here at 3.30 in the afternoon with new legislation which the House is asked to pass in one day. May I ask the right hon. Gentleman what is the position of those hon. Members, particularly those in Northern Ireland, who may not be here this afternoon and may have an undoubted interest in this Bill? What arrangements have been made to notify them of this impending legislation? [Interruption.] This is a serious matter. This issue does not appear on the Order Paper, and many hon. Members will have looked at that document to see the agenda for today's business. Surely a matter which does not appear on the Order Paper as a subject for debate should be given special treatment to enable hon. Members to be informed, by whatever means available, of any change of business. What efforts has the Home Secretary made to this end?

§ Mr. Maudling
The judgment was delivered only this morning, and I have made a statement to this House at the earliest possible moment.

§ Mr. Harold Wilson
In view of the remarks of the hon. Member for Horn-castle (Mr. Tapsell), who genuinely and sincerely misunderstood what I said, could I again ask the right hon. Gentleman to come back to the point of immunity? I was not referring to immunity in respect of crimes of murder and arrest, but I was pressing the right hon. Gentleman—and he said that the Attorney-General would deal with this matter tonight—to deal with the position of those against whom proceedings could be taken, as they were taken against Mr. Hume; and, of course, Mr. Hume's case has been quashed by this ruling. I refer to those who would not be proceeded against in Northern Ireland as a result of the ruling 1296 of the Divisional Court but who again might be the subject of new proceedings once we have made the matter legal. May we have an assurance—I do not ask for it now since it can be dealt with by the Attorney-General this evening—that there will be no new proceeding as a result of the validation by this House, if we so decide to validate, of the position of the troops and of the kind of alleged offence which Mr. Hume was supposed to have committed?
Secondly, may I ask the right hon. Gentleman about the point made by the right hon. Gentleman the Leader of the Liberal Party, who quoted the Downing Street Declaration? This again is a matter which we should like the Attorney-General to answer tonight. Is it not a fact that, although the Royal Ulster Constabulary was acting de facto as part of the Armed Forces, it was acting finally under the orders of the Ministry of Home Security and to that extent any action taken by it is not in question? Could the House be advised on that?
Thirdly, with regard to the point made by the right hon. Member for Ashford (Mr. Deedes), surely it is not beyond the capability of the services available to this House or to the Government to obtain photostat copies of a 36-page document before the debate begins at seven o'clock.

§ Mr. Thorpe
Of course they can do it.

§ Mr. Wilson
I am sure this is possible, and, indeed, the right hon. Gentleman the Leader of the Liberal Party and I will place our photostating capacity at the availability of the Government so that this can be done. It is surely relevant when dealing with a Bill of this kind for the House to know the exact terms of the judgment rather than to have to rely on the inevitably simplified version which we have seen on the tape.
Fourthly, since the right hon. Gentleman has justified, and I think the Leader of the House will justify, the decision to try to get the Bill through the House this evening, may I have confirmation from the Government in so far as they have any authority in this matter that arrangements are, so far as they understand, being made in another place so that if this House passes the legislation we may assume that another place will be available and able to deal with it? We are being asked to confirm the legality 1297 under which our troops are operating, and we should not like to see all our efforts and sacrifices frustrated by the fact that the troops might still be left in an equivocal position.

§ Mr. Maudling
The Attorney-General tells me that he will take note of the first two points and deal with them both in the discussions this evening. We shall do our level best to get as much of the transcript of the judgment as possible made available by seven o'clock tonight, but the message is still coming through and the Telex is still at work on it. The position over another place has been very much in our minds, and I hope that my right hon. Friend the Leader of the House will be able to deal with that.

§ Mr. McMaster
On a point of order, Mr. Speaker. Neither my hon. Friends who who are Ulster Unionists nor I have been able to catch your eye during these exchanges—

§ Mr. Speaker
That is not a point of order. The hon. Member, I think, will have many opportunities later in the day.

§ Mr. McMaster
Further to that point of order, Mr. Speaker. The hon. Member for Ashton-under-Lyne (Mr. Sheldon) referred to the absence of Ulster Unionists. If I am not allowed to ask a question, many of my constituents will wonder why I did not intervene.

§ Mr. Speaker
That is not a point of order.