§ 7.0 p.m.
§ The Attorney-General (Sir Peter Rawlinson)
I beg to move,That leave be given to bring in a Bill to declare the law as to the legislative powers of the Parliament of Northern Ireland under Section 4(1) of the Government of Ireland Act, 1920, so far as relates to Her Majesty's Forces and in particular to the conferment of powers, authorities, privileges or immunities on them.That is the Long Title of the Bill which I ask leave to introduce. My right hon. Friend the Home Secretary earlier explained to the House that it was necessary to invite the House to proceed to consider this short Bill forthwith because of the effect of a judgment delivered this morning in the Divisional Court of Northern Ireland on the power of Her Majesty's Forces in Northern Ireland. I understand that copies of the draft Bill are available to Members in the Vote Office, if only in a typescript form. In asking for leave, I shall take the opportunity of explaining this short Bill, its effect and the reasons why I seek leave to bring it in at this time.
In August 1971, a Mr. John Hume and others, when part of a crowd, refused to disperse when ordered to do so by an army officer who was exercising powers under Regulation 38 of the regulations made under the Civil Authorities (Special Powers) Act, Northern Ireland, 1922. On 8th September last year, Mr. Hume was convicted of the offence and fined £20. Mr. Hume and the others then applied to the Northern Irish High Court for an order of certiorari to quash the conviction. This hearing took place last month 1364 and the judgment was given this morning. The judgment has also been provided in typescript form. I received a copy of that this afternoon. By that judgment, the application of Mr. Hume succeeded and the convictions were quashed.
However, as my right hon. Friend the Home Secretary said earlier today, the Government have decided that it would be indefensible to leave the Army without the essential powers which enable it to discharge the duties for which it was sent to Northern Ireland while the legal processes of any appeal were carried through. As the House will appreciate, any such appeal, allowing, as the House of Lords undoubtedly would, for sufficient time for Mr. Hume and his advisers to select counsel and prepare his argument, would inevitably take some time. Even if it were days or weeks, such a time would be too long in the grave situation which now faces Northern Ireland.
The judgment of the High Court of Northern Ireland turns upon the interpretation of Section 4 of the Government of Ireland Act of 1920. It is necessarily a technical and narrow point of law, and it is strictly a point of law. But it goes contrary to what was previously thought to have been the law and what had previously been held by the English courts. It affects solely the exercise of powers under the Special Powers Act by the military. It does not affect the powers of police officers or constables.
The principal Act, establishing the Parliament and the executive authority in Northern Ireland, is, of course, the Government of Ireland Act of 1920, under Section 4(1) of which, the Northern Ireland Parliamentshall … have power to make laws for the peace, order and good government of … Northern Ireland",except that itshall not have power to make laws in respect ofcertain tabulated matters. It is on the true legal construction of the words "in respect of" that it appears that the court in Northern Ireland differed from the hitherto only known judgment, of a judge of the High Court in England.
One of the matters on which the Northern Ireland Parliament was not permitted by the 1920 Act to legislate was 1365 in respect of the Navy, the Army, the Air Force or the defence of the Realm. In considering a similar change in the position of the military and their powers under the Special Powers Act, in September, 1971, Mr. Justice Ackner in the High Court in England held that the Special Powers Act was not a law in respect of any military matter, that it was a law for the peace, order and good government of Northern Ireland, that the legislation made under it was not ultra vires, and accordingly, that the military had been validly given the powers to do acts under the Special Powers Act.
It is with that interpretation of the law that the Divisional Court of Northern Ireland now differs. It has in effect declared that, so far as these Regulations purport to give power to Her Majesty's Forces on duty to exercise powers, such as the powers of search and arrest, those powers are ultra vires and therefore unlawful. Although the case of Mr. Hume concerns only Regulation—
§ Mr. Michael McNair-Wilson (Walthamstow, East)
Do Her Majesty's Forces include the Ulster Defence Regiment?
§ The Attorney-General
Yes, they do. The Ulster Defence Regiment is a part of Her Majesty's Forces. The Royal Ulster Constabulary is of course the constabulary concerned.
Although the case of Mr. Hume concerned only Regulation 38, the grounds for the judgment necessarily impugn the lawfulness of many vital actions which are being taken and. in nearly three years, have been taken by the Army in carrying out its rôle in Northern Ireland.
Without its ability to carry out such tasks, especially the search for arms and ammunition, arrest, and the stopping and searching of vehicles, the Army's operations in Northern Ireland would be very severely limited and restricted only to the common law powers such as can be exercised by any citizen. The situation in Northern Ireland would be gravely affected and the danger to citizens there inevitably increased. This is the consideration which prompts the Government to ask Parliament to pass this legislation without delay.
The purposes for which Her Majesty's Forces were first sent to Northern Ireland by the previous Government necessarily 1366 involved the exercise of powers involving searching, stopping of vehicles, arrest and dispersement of crowds—which powers are greater than can be exercised by the Army under common law when acting in aid of the civil power. That such extra powers were necessary was readily acknowledged by the Leader of the Opposition today and by Ministers of the previous Government who sent the Army to Northern Ireland in 1969.
As the hon. and learned Member for Barons Court (Mr. Richard), who is present, said in November 1969, when he was Under-Secretary of State for Defence:The powers conferred upon members of the armed forces on duty by regulations made under the Civil Authorities (Special Powers) Acts include those of stopping and searching persons and vehicles, entering and searching premises, requiring persons to answer questions, and arresting persons without warrant. The regular exercise of these powers has been essential for the conduct of peacekeeping operations by the Armed Forces.—[OFFICIAL REPORT, 28th November, 1969; Vol. 792, c 158.]Similarly, the then Minister of State for the Home Office, the hon. Member for Hitchin (Mrs. Shirley Williams) on 25th November, 1969, said:The actions of the Army … are mainly conducted under the Special Powers regulations.The hon. Lady also said:The Army is operating under the Special Powers Act. This is what it is using, for example, to investigate trucks, and so on."—[OFFICIAL REPORT, 25th November, 1969; Vol 792, c. 336, 340.]The hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), who was then the Minister of Defence for Administration, on 1st December, 1969, speaking of the Ulster Defence Regiment, said:This is exactly the sort of task which the Army is at present carrying out. It is exactly the sort of task which the new regiment should carry out.… We must rely on those parts of the Special Powers Act which make it possible for us to go on doing the job which is vitally necessary in the interests of the community as a whole."—[OFFICIAL REPORT, 1st December, 1969; Vol. 792, c. 211–2.]The Northern Irish legislation which was referred to by those then Ministers, the Civil Authorities (Special Powers) Act, Northern Ireland, 1922, is the legislation under which the special powers were given. The right hon. Gentleman the Leader of the Liberal Party this 1367 afternoon raised a question, but that is an Act of the Northern Irish Parliament, and its validity is not now in question, because by Section 1 of that Act power was given to the Minister for Home Affairs of Northern Ireland to take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order, according to and in the execution of the Act and the regulations, and by Section 1 of that Act the Minister had power to make regulations for the preservation of peace and the maintenance of order which may be varied or revoked, and the regulations are contained in Schedule 1. From time to time over the past 50 years they have been varied, revoked, or reintroduced.
The principal regulations express to give powers to a police officer or constable or to a member of any of Her Majesty's Forces on duty. This is the power which is now impugned. Those powers, exercised as they have been by the troops since 1969, have in the main been in existence for many years prior to 1969. The ones prinicipally used by the Defence Forces in Northern Ireland are as follows.
Regulation 4 gives power to enter and search a house, vehicle, vessel or other premises on suspicion that it is being used for a purpose prejudicial to the peace or order. That was a power given to Her Majesty's Forces in 1957.
Regulation 5 is a power to stop any vehicle on a public road and, on suspicion that it is being used for any purpose prejudicial to the peace or order or other lawful purpose, to search and seize the vehicle or anything found in it. That power was given in 1957.
Regulation 6 is the power to stop and search any person on suspicion that he is carrying any firearm, ammunition, explosive, or any article or document prejudicial to the peace. That was a regulation given in 1957.
Regulation 11 gave power to arrest without warning a person suspected of acting, or having acted or being about to act in a manner prejudicial to the peace or order, or of being in possession of any article or document for any purpose prejudicial to peace or order. That was a regulation made in 1956, and it includes a power for any member of Her Majesty's Forces on duty.
§ Mr. Jeremy Thorpe (Devon, North)
I apologise if I have failed to catch what the right hon. and learned Gentleman was saying. I was trying to follow his argument. Would he say to whom those specific regulations were given, and by whom?
§ The Attorney-General
These were regulations made under the Special Powers Act by the Northern Ireland Government. They were regulations which gave powers to a police officer or constable, and from the dates I have mentioned, to any member of Her Majesty's Forces on duty—1957, 1954, and so on.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
Would the Attorney-General confirm that the last power to which he referred, the power of arrest, is the power under which people then received detention orders, and then received internment orders, and the power also under which the Minister for Home Affairs may order a person to be taken from one place to another and to be put in the custody of a third party?
§ The Attorney-General
This is the power under Regulation 11, which has been in existence for many years and which gave powers to the Army in 1956. The hon. Gentleman is correct that that was the power which was used to effect arrest whether by the Army or by the constabulary.
Regulation 38 is the regulation pertinent in this particular case. It provides power to require an assembly of three or more persons to disperse if it is suspected that the assembly may lead to a breach of the peace. This regulation was made in 1966 in respect of the Royal Ulster Constabulary. It was extended to any officer of Her Majesty's Forces on duty by regulation dated 7th August, 1970.
Regulation 7 first came into effect in 1956. That is the regulation which makes it an offence to fail to stop or to answer questions.
I have recited those so that the House should be clear as to what are the regulations and what are the powers which the Army has been exercising, and under what authority. As I have said, prior to the present judgment, the vires of the regulations empowering the Army to 1369 exercise such powers has been examined by a judge of the High Court in this country, Mr. Justice Ackner. On the application in the case of Keenan and McElduff for a writ of habeas corpus in the courts of this country, Mr. Justice Ackner held that the regulation in question was not ultra vires and that power under such regulations could be exercised by Her Majesty's Forces and could be applied to Her Majesty's Army. That case went to the Court of Appeal in London but was disposed of on a preliminary point of jurisdiction. The decision of Mr. Justice Ackner on the point of vires was referred to by the Court of Appeal in their judgment. So until today the lawfulness of the Army's activities, unquestioned by either Government since 1969, had been upheld by a judge of the English High Court, and now, by the present judgment of the Northern Irish Divisional Count, such activities have been declared to be or to have been unlawful.
It is with the knowledge of the situation in Northern Ireland that the House, I am sure, understands how imperative it is that the law should be clarified and the Army permitted to continue its thankless and dangerous task in Northern Ireland. It is for this purpose that this short Bill, a draft of which has been placed in the Vote Office, is presented.
The purpose of the Bill is to give statutory authority to what has been called in law the pith and substance principle in relation to legislation directed to the peace, order and good government of Northern Ireland which to that end confers powers upon the Armed Forces of the Crown.
Thus Clause 1, the only operative Clause, provides that the limitations imposed by the Act of 1920 in relation to the Armed Forces is not to have effect or to be regarded as ever having had effect so as to preclude all provision relating to the Forces. In other words, some provision relating to the Forces is permissible, provided that the real substance of the legislation in question lies within the powers of the Northern Ireland Government. In its second part, the Clause deals specifically with the particular point at issue in this case by providing that, in particular, the 1920 Act does not and never has prevented powers from being conferred upon Her Majesty's 1370 Forces by or under Northern Ireland legislation in relation to the maintenance of order in Northern Ireland.
The Bill does not affect the position in relation to the convictions in this case. Those convictions have been quashed, and the Bill does nothing to abrogate the order of the Court which quashed them.
The Bill, if it become law, will not affect the consequences of the Hume case. Mr. Hume's conviction and the others will remain quashed and the Attorney-General of Northern Ireland has authorised me to say that, though leave was given to appeal to the House of Lords, if the Bill becomes law he will abandon that appeal. The Bill challenges the law as expressed in the Hume judgment. It means that no one can successfully mount actions for trepans or wrongful arrest or apply for writs of habeas corpus arising out of actions by the Army in the proper execution of their duties under these regulations. It does not, of course, cover any conduct beyond such execution of such duties. It provides for making lawful solely what was always thought to have been lawful, what a judge of the English High Court thought was lawful, namely the exercise of the powers by the Army under the regulations.
§ Mr. Peter Archer (Rowley Regis and Tipton)
I realise the need to clarify the Army's powers for the future, but does it not follow from what the right hon. and learned Gentleman has said that this Bill will operate retrospectively to abrogate civil claims for compensation which are already vested in individuals and if so, does he know of any precedent for anything which goes so far?
§ The Attorney-General
The hon. and learned Member says "already vested in individuals". But they have not been vested until this morning at 12 o'clock in regard to a soldier, acting under these regulations, stopping a vehicle or entering premises in the course of searching for ammunition. To clarify this I should say that the Attorney-General for Northern Ireland is willing that I should give an undertaking to the House that any prosecution now pending, which would fail if today's Judgment stood, will be abandoned or stopped and no new prosecution of that kind will be initiated in relation to the past.
1371 This does not affect charges brought or proceedings pending under any other Statute or any offence against other provisions of the criminal law. For example, where a vehicle has been stopped and explosives discovered those proceedings at criminal law will, of course, proceed. But broadly speaking no prosecutions for offences under the Special Powers Act, where the actual offence solely consists of some failure to obey an order or requirement of the military—
§ Mr. Stanley Orme (Salford, West)
I understand that the ruling would not cover the cases the hon. and learned Gentleman has mentioned. But would it cover, for instance, the demonstration in Newry and any other demonstrations which have recently taken place?
§ The Attorney-General
I am instructed that the Newry demonstration does not concern the military's powers under the Special Powers Act. Any offence would be a breach of the Public Order Act and that would not be affected by this judgment.
The Leader of the Opposition asked about the Downing Street Declaration and it is right that I should remind the House of it. In the communiqué of 19th August, 1969, it was agreed that the General Officer Commanding should assume overall responsibility for security operations but that for normal police duties outside security matters the Royal Ulster Constabulary remained answerable to the Inspector-General who is responsible to the Ulster Government. But shortly thereafter the Chief Constable was made responsible for the co-ordination of the tasking of the Royal Ulster Constabulary in security operations. This restored the independence of the police in operational matters. None of this affects or is affected by the legal provisions of the Bill. I have explained why the Bill is necessary, its provisions and that it is a technical legal matter on a narrow legal point. As to its urgency I remind the House that it is in the context of the situation in Northern Ireland, the daily use of firearms and explosives, the constant death and injury, and I seek leave accordingly to bring in the Bill.
§ 7.26 p.m.
§ Sir Elwyn Jones (West Ham, South)
So that we may understand the procedure, 1372 are we now to discuss this matter as though we were dealing with the Second Reading of the Bill?
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
Yes. I think the right hon. and learned Gentleman's idea is that we should have our general debate on the question that he be given leave to bring in his Bill and that perhaps the House might, in its wisdom, and bearing in mind that another place is having to wait for us to conclude our proceedings here, be content to let the Second Reading go in a reasonable manner.
§ Sir Elwyn Jones
I am grateful to you for that guidance, Mr. Deputy Speaker. Speaking for myself, and I suspect for my right hon. and hon. Friends, that would seem to be an agreeable course to follow.
I must begin by emphasising that while we on this side of the House appreciate the extraordinary emergency features of the situation in which we now find ourselves, I must emphasise the wholly exceptional nature, as the Home Secretary conceded this afternoon, of the proceedings upon which we are now engaged. The House is being asked to deal with what is no doubt an important Bill, first without notice that the matter was going to arise tonight—and no one can blame the Government for that. But we are doing so without the full opportunity of even reading the judgment which has given rise to the trouble we are having to deal with, and without a proper opportunity to consider all that is involved in the Bill. We are having to do it within the space of a few hours in a debate starting at 7 p.m. I want, therefore, to repeat what has been said already: that this is a wholly exceptional situation and a wholly exceptional procedure, justified only by the situation in which our troops find themselves tonight in Northern Ireland.
It is because of their dangerous situation that we on this side think it right to pass this Bill which seeks to be a validating Bill. For, if tonight, for instance, our soldiers may have to stop a vehicle which they may think, or have reasonable grounds for thinking, is carrying arms and explosives, and may consider it right to stop it to save lives and damage, unless we pass an effective Measure to put the situation right a question is raised over the exercise of 1373 their power to stop such a vehicle. Clearly, this puts our troops into an intolerable position. As the Leader of the Opposition said, this could well encourage certain people to intensify the killings and the violence tonight and until the situation is remedied. It is clearly not right that our soldiers should be put at risk because of political decisions taken in this House. On this side we agree that something needs to be done.
It is right, nevertheless, that, despite the emergency, the effect and implications of the Bill should be carefully studied. In a moment or two I must ask the Attorney-General whether he thinks the terms of the Bill are effective to achieve the purpose we all seek.
As I understand it, the basic legal authority for the use of troops to do most of the things that they have been doing in Northern Ireland derives from two rules. First, a person may use such force as is reasonable in the circumstances for the prevention of crime. This proposition was given statutory form in Northern Ireland in the Criminal Law Act, 1967, following Section 3 of the Criminal Law Act of the United Kingdom of the same year.
The second rule is that under common law it is the duty of every person to come to the assistance of the civil authorities to maintain law and order if called upon to do so. Military personnel are under no higher or lower obligation than any other citizen in these respects. The significance of their use is their greater power. When the military is employed in aid of the civil power, it is the responsibility of the commander of the forces employed to decide what force is necessary to deal with the situation. He would be legally liable—and so would the troops under his command in certain circumstances—if he or they used excessive force, but he would be failing in his duty if he used inadequate force.
As I understand it, none of those propositions will be affected by the terms of the Bill. So the exercise of powers by the military outside the ambit of the Special Powers Act and the regulations passed thereunder is not in question and this is not affected by the Bill. The purpose of the Bill is to validate the use by the troops of the additional powers over and above those common law powers I have mentioned, additional 1374 powers which have been given to the troops, or it was thought had been given to them by Northern Ireland parliamentary and ministerial procedures, by the Special Powers Act and regulations issued under it.
The right hon. and learned Gentleman has specified the five regulations that are relevant to our consideration. They sought to confer on the military authorities concerned similar powers in regard to the matters in question as are conferred on the Northern Ireland police. Successive Governments have thought there could be no legal doubt that in using its powers to make laws for the peace, order and good government of Northern Ireland the Northern Ireland Parliament could confer on members of Her Majesty's Forces powers similar to those conferred on the police.
Perhaps I should emphasise that in no instance has there been any attempt to confer on the military greater powers for the preservation of peace, order and good government than have been conferred on the police in Northern Ireland. I understand that the Bill will not affect that state of affairs. However, as we have learned today, the Divisional Court of Northern Ireland has construed Section 4(1) of the Government of Ireland Act, 1920, in a way which within Northern Ireland will invalidate those regulations, or parts of them—in the immediate case, Regulation 38—which conferred powers on an officer and in other regulations on other ranks as well. This differs from the construction of the Section less than a year ago by a High Court judge in London.
Whatever the correct construction in law, the matter cannot rest where it is. In view of the situation now prevailing in Northern Ireland, it is right in the view of those of us on this side of the House that, at any rate in the immediate situation, the powers given to the military under the Special Powers Act and regulations should be validly available to them and validly exercisable by them.
But I regret to have to ask with some concern whether the Bill is effective to achieve the purpose the Government and the Attorney-General have in mind. Clause 1 states:The limitations imposed by paragraph (3) of section 4(1) of the Government of Ireland Act 1920 on the powers of the Parliament of 1375 Northern Ireland to make laws shall not have effect, and shall be deemed never to have had effect, to preclude the inclusion in laws made by that Parliament for the peace, order or good government of Northern Ireland of all provision relating to members of Her Majesty's forces …So we are dealing, in the Clause, with law made by the Parliament of Northern Ireland:for the peace, order or good government of Northern Ireland relating to members of Her Majesty's forces".Later in the Clause we see a reference toany such law",presumably referring back to a lawrelating to members of Her Majesty's forces.When we examine the regulation in immediate question, Regulation 38, we see first that it is made by the Minister of Home Affairs. One would not think that the regulation as such is aptly described as a law made by the Northern Ireland Parliament. Presumably, those words refer to an Act of that Parliament. Regulation 38 is described as follows:Regulations made by the Minister of Home Affairs under Section 1, subsection 3, of the Special Powers Act.Therefore, one would look to that Section to see whether it isa provision of an Act relating to members of Her Majesty's forces".Most unhappily, there is no reference in that Section to its being a provision relating to members of Her Majesty's Forces. The Section says:The Minister of Home Affairs shall have power to make regulations—It is true that in the Act there is a reference in Section 7 to a limited provision for powers
- (a) for making further provision for the preservation of the peace and maintenance of order, and
- (b) for varying or revoking any provision of the regulations; and any regulations made as aforesaid shall, subject to the provisions of this Act, have effect and be enforced in like manner as regulations contained in the Schedule to this Act."to be exercised by His Majesty's forcesas they then were. It says:Any person authorised by the civil authority, or any police constable, or any member of any of His Majesty's forces on duty may, where it is necessary for the purpose of effecting an arrest …1376 exercise the same powers as a policeman. But it is not under that Section that Regulation 38 was made.
In the speed with which we have had to consider these matters, I have not obtained the other regulations, unfortunately. I do not know under what statutory authority they were made, but no doubt right hon. and learned Gentlemen will enlighten us on that. It may be that this is the only case where a regulation purports to have been made under a Section of the Special Powers Act which, most unhappily, is not caught by the language of Clause 1. I invite the Attorney-General to give the most anxious thought to this. I say that in no patronising sense but because this is a matter we all want to get right.
The Attorney-General said that the aim of the Bill was to clarify the law. Heaven knows, let us do it effectively this time and not find ourselves next week in this kind of dilemma again. It may be that there is an answer to this point. It may be that it should be dealt with by Amendment.
§ The Attorney-General
I told the House that the regulations were contained in Schedule 1 of the Civil Authorities (Special Powers) Act (Northern Ireland), 1922. They are regulations for peace, order or good government of Northern Ireland. Therefore, they are part of the statute which was enacted by the Parliament of Northern Ireland. It is only that part of that statute which referred to the military which was impugned by the Divisional Court. It is that part of the statute which the Bill is designed to correct.
§ Sir Elwyn Jones
I have not got the whole of it before me. Is the Attorney-General saying that all five regulations with which we are concerned are expressly referred to in the schedule to the Special Powers Act?
§ The Attorney-General
All the regulations are contained in the Schedule. The regulations to which I particularly drew the attention of the House are those which have been used by the Army in Northern Ireland since 1969. I particularly draw to the right hon. and learned Gentleman's attention the wording of the Billthe conferment on them by, under or in pursuance of any such law".
§ Sir Elwyn Jones
I am obliged to the right hon. and learned Gentleman. I am still troubled about this matter. Clause 1 confines and limits the laws which are relevant to this operation to laws made by the Northern Ireland Parliament relating to members of Her Majesty's Forces. Regulation 38, which I see now is scheduled to the Special Powers Act, clearly makes reference to members of the Royal Ulster Constabulary, but, as I see it, it makes no reference to the military at all.
§ Mr. Emlyn Hooson (Montgomery)
I am sorry to interrupt the right hon. and learned Gentleman, but he is on a very important point. I have just noticed that in its judgment the Divisional Court in Northern Ireland concluded that Regulation 38(1) is a law "in respect of" that subject matter being the subject matter in Section 4(1)(iii) of the Act. The court had the opportunity of going into the matter in far greater detail than we have had and that was the conclusion which it reached. I have not yet had an opportunity of considering all the grounds on which that conclusion was reached, but that is the conclusion which the court reached.
§ Sir Elwyn Jones
It was that Section that the court was construing, and it is the court's construction of it which has led to the difficulty in which we now find ourselves.
There it is. It may be that others in the House will have given as much thought to this matter as we have been able to apply to it in the short time available and that we shall get further guidance. At the moment, I am by no means satisfied that Clause 1 is competent to validate the position of the exercise by the Armed Forces of their powers under the Northern Ireland legislation.
I turn now to a further matter about which, happily, we have had some reassurance from the Attorney-General. As has been pointed out, an anxious feature of the Bill is its retrospective effect. In my view, it would be perfectly reasonable—indeed, it is the purpose of our endeavours—to make use of the provisions of the Bill to indemnify members of Her Majesty's Forces in respect of acts which, but for the Bill, would, under the ruling of the Divisional Court, be illegal. It is right that they should 1378 be indemnified. It would be quite wrong, however, to make use of the Bill retrospectively to impose criminality now, or hereafter, upon the acts of persons in Northern Ireland and which would be legal upon the Divisional Court's ruling.
It is indeed gratifying that we have had an assurance from the right hon. and learned Gentleman that the Attorney-General of Northern Ireland has given a positive undertaking to approach these matters in the way which I have submitted is just and fair.
However, I am not happy about the answer which the Attorney-General gave, in so far as he gave it—I do not mean that in any unkind sense; perhaps the matter had been overlooked—to the question put to him by my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) regarding outstanding civil claims. Will the right hon. and learned Gentleman tell us a little about that? Will the Bill shut out those who, but for the Bill, would have pressed forward with civil claims which have been initiated and might now be sought to be frustrated by reason of the terms of the Bill?
I recall getting into terrible trouble in this House, when I was sitting in the Attorney-General's place, over the Burmah Oil Bill a long time ago. I still have the scars in my mind. While I agree that in this Bill we are not setting aside the judgment of a court—that was the point of attack in the Burmah Oil case—nevertheless, the House should be reassured in this context.
We are concerned with grave matters concerning our troops across the water. Indeed, the people of Ireland and Northern Ireland may also be affected. The Bill raises other questions of a more general character than those I have raised on the Bill itself. As my right hon. Friend the Leader of the Opposition said this afternoon, our approval of a measure to clarify the position of the troops as of now is without prejudice to the demand which has been made for early consideration by Parliament of the whole conditions under which our troops are presently operating in Northern Ireland, of the whole operation of detention and of the whole question where responsibility for the security arrangements ought finally and absolutely to lie. These are matters which the Leader of the House 1379 indicated we shall be given an early opportunity of discussing, as discuss them we want to do.
§ 7.48 p.m.
§ Mr. Jeremy Thorpe (Devon, North)
I should like to start by echoing what the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) said: namely, that since the troops are in Northern Ireland as a result of a political decision of this House, they are entitled to all the protection and immunity to which they are reasonably entitled under the law. I cannot speak for the whole House, but certainly that is the view of my hon. Friends and, I suspect, of the vast majority of this House.
We should realise that this is not a simple matter. Furthermore, it is a matter in which we are being asked to pass retrospective legislation.
I wish to make two main points. First, I assert that, under the existing law of the land, Her Majesty's Forces are entitled to an immunity whether or not the Bill is passed. I shall say why later.
Secondly, I believe that the House has to consider what powers are in fact being bestowed upon Stormont. In my view, they are certainly greater powers than were intended under the 1920 Act, and they are certainly greater powers than the Stormont Parliament thought they had when they passed the Special Powers Act, 1922.
In that situation, whilst we do not, I suggest—certainly it is not my intention—want to go into the political questions, it is a fair point to say that if this House, in the very delicate sphere of security of the Armed Forces of the Crown, is seen to be bestowing greater powers on Stormont than this House intended in 1920, and than Stormont, on the interpretation of the 1922 Act, thought it had, whilst we in this House may not think it is of greate political significance, there will be many outside who would disagree.
The Home Secretary in his statement said—and I hope I paraphase fairly; if not, I hope he will correct me—that we needed to empower Her Majesty's Forces, inter alia, to call upon an assembly to disperse, and to stop and search people or vehicles suspected of carrying firearms or explosives, and to make other regulations not specified. We are to assume that this Bill remedies that deficiency.
1380 The right to use special powers was given legislative effect in the Northern Ireland Parliament by the Special Powers Act, 1922, as the right hon. and learned Gentleman the Attorney-General rightly said. The details relating to such powers are contained in the Schedule which is attached to that Act and which therefore forms a part of it, and the general position relating to the Armed Forces is specifically contained in Regulation 35, under the 1922 Act, which says:These Regulations shall not, save as therein expressly provided, be construed as applying to members of His Majesty's Forces when acting within the scope of their dutiesThis, if I may repeat, is what the Stormont Parliament thought was the extent of the powers which it could operate under the Special Powers Act, bearing in mind the matters reserved to the Westminster Parliament and the matters delegated to Stormont under the 1920 Act.
Power to stop, search and seize a vehicle or anything found therein is expressly referred to in Regulation 21 under the Special Powers Act. I think it is of importance that that Regulation only—and I repeat only—confers that power on a police officer or a constable. No reference is made to Her Majesty's Forces. I would have thought on the interpretation of Statutes that the inclusion expressly of one category by implication excludes all others. Therefore, I think it is a fair assertion that the 1922 Act never purported or granted expressly or by implication such powers to Her Majesty's Forces at the gift—if I may use a neutral term—of the Northern Ireland Parliament.
Now the Government, rightly worried by the fact that Her Majesty's Forces have exercised such powers, and the Northern Ireland judgment has given its opinion that they are not so entitled, introduce a Bill which purports to remedy that defect. The basis of the court's decision is that Regulation 38, passed in 1970 in a statutory instrument, offends against the expressly reserved category to be found in Section 4(1)(3) of the 1920 Act. Whilst I have not seen the 1957 Regulations to which the right hon. and learned Attorney-General referred, I would assume that, on the basis of that judgment, the view would be similarly taken that the Northern Ireland Parliament has passed a whole series 1381 of regulations giving to the troops powers which are ultra vires the Special Powers Act, 1922. Therefore, what is happening on this occasion is that the Government are expressly interpreting or reinterpreting Section 4(1)(3) of the 1920 Act. In my submission, whilst I entirely accept that the object of this Bill is to give protection and rights and authority and immunities to the troops, we are doing so by a Bill which confers upon the Northern Ireland Parliament powers which this House never intended it to have, powers which Stormont—and on the construction of the Special Powers Act, 1922, never thought it had—in a situation in which powers have been accorded by a series of statutory instruments, which, in the view of its own courts, are ultra vires that Act.
Therefore, I very much wonder whether this Bill in effect gives those powers, unless the Attorney-General can tell us that by reinterpretation, for that is what it is—it is almost a declaration and interpretation of the 1920 Act—this Bill in effect overrides the Northern Ireland Act, 1922, by expressly reversing Regulation 35 and the Schedule, which expressly precluded them from giving orders to the Armed Forces. I am not certain, and I ask for guidance from the Attorney-General. If he is saying that all this Parliament has to do is to pass an Act which, if it happens to conflict with a Northern Ireland enactment, then it automatically prevails; if that is the position, then the whole of the Special Powers Act in Northern Ireland has now been radically altered without reference to it being made in the Schedule to the Bill. That may be altered later and altered in a way which gives power to Northern Ireland, which this Parliament had not intended. Therefore I ask whether we are achieving a worthy objective and are indirectly bringing about a political situation which some of us would greatly regret.
The reason why I say that I believe that the Forces of the Crown have immunity in any event is the existence of the Crown Proceedings Act, 1947. As the right hon. and learned Attorney-General will know, Section 53 of that Act expressly provided that its application could be extended to Northern Ireland, and by Statutory Instrument No. 1836 of 1382 1949, the Act could apply in the courts of Northern Ireland. Section 11(1) says:Nothing in Part I of this Act shall extinguish or abridge any powers or authorities which, if this Act had not been passed would have been exercisable by virtue of the prerogative of the Crown, or any powers or authorities conferred on the Crown by any statute, and, in particular, nothing in the said Part I shall extinguish or abridge any powers or authorities exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of the realm "—and I repeat those words—for the purpose of the defence of the realm or of training, or maintaining the efficiency of, any of the armed forces of the Crown.Subsection (2) says that the Secretary of State may, if satisfied that the act or omission complained of in regard to the Armed Forces of the Crown was necessary for any such purpose as mentioned in the previous subsection, issue a certificate. That is to say, if he were prepared to certify that the acts or omissions were in furtherance of the defence of the realm he could issue a certificate to the effect—… that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matter so certified.So we already have a complete protection for the Armed Forces of the Crown where they are acting in defence of the realm and the Secretary of State is prepared so to certify. The immediate panic that there will be a series of actions in tort against the Armed Forces of the Crown seems to me, with great respect, to show insufficient appreciation of the weapons which the Government have at their command under the 1947 Act.
§ Sir Elwyn Jones
Are there not potential difficulties in the criminal field? That would not be protected by the provisions of the Crown Proceedings Act.
§ Mr. Thorpe
I entirely agree with the right hon. and learned Gentleman. I think he has a point. But we must look at the situation in which a private criminal prosecution can be brought against a member of the Armed Forces of the Crown. Certainly, a public prosecution would be within the discretion of the Director of Public Prosecutions in Northern Ireland and the existence of the certificate issued by the Secretary of State would be for him an indication that these matters could not be proceeded with.
1383 I entirely accept that the Government are right to introduce legislation which will have the effect of clarifying the law and giving an immunity to the Forces of the Crown, but I strongly object to the legislation being so framed that its effect will be to give powers to Stormont which were certainly not within the contemplation of this House in 1920, and which were certainly not thought by Stormont to be within its compass in its own legislation in 1922.
That is why, when we have completed Second Reading, my colleagues and I hope that a manuscript Amendment might be accepted, the terms of which would be out of order now but the effect of which would be that the Bill would be subject to affirmative resolution at the end of a year.
I parenthetically make the final point that the complexity of security matters and the division of power between this House and Northern Ireland make it all the more vital, as some of us have demanded, that the control of Her Majesty's United Kingdom Forces should rest exclusively with Her Majesty's United Kingdom Parliament.
§ 8.3 p.m.
§ Mr. Stanley Orme (Salford, West)
Having listened to the legal discourse of three learned gentlemen, I do not want to cross swords on the legal niceties of the Bill.
§ Mr. Orme
I will leave that to the lawyers. I am concerned not so much about the legal arguments as about the effect of this legislation on the Catholic community in Northern Ireland. It is now more important than ever that a move towards a political solution of this problem should be made by the Government. All hon. Members want to see the British Army moved out of the position of danger in which they are, and the troops will be moved out of that position of danger only when political initiatives are taken in which the community as a whole can have confidence and which themselves will lessen the tension.
The deterioration of the situation in Northern Ireland and the effect of internment have been politically disastrous. 1384 When I referred to this matter earlier this afternoon I found it difficult to differentiate between the offence for which Mr. Hume was charged and of which the Belfast court acquitted him and other illegal acts of violence in Northern Ireland which none of us supports. I know that the Home Secretary and the the Minister of State are aware of our feelings on this matter. We are continually pressing for the defence of the elected representatives in Northern Ireland so that democracy shall not be destroyed. The repercussions of the Bill, justifiable as it may seem to the House, must be weighed most seriously.
I link this with the remarks about Stormont made by the Leader of the Liberal Party. The Bill speaks of the powers of the Parliament of Northern Ireland, which are linked to the Special Powers Act which many of my hon. Friends detest. The Special Powers Act has not helped the people of Northern Ireland but has rather contributed to their problems.
The Stormont Government have a record of not recognising the need for political change. If moderate political reforms had been undertaken a few years ago with the whole-hearted support of the Stormont Government, we should not now be in a war situation in Northern Ireland.
It is not always easy politically to make these points, but the more difficult it is the more important it is that my hon. Friends and I should make them. If we do not do so, the time will come when there will be no one left for the Government to negotiate with except the Provisional or Official I.R.A. I do not want that to happen. If they were given confidence in real reforms, the Catholic community would rally to their elected leaders and themselves help to resolve the serious internal security problem.
With this background in mind, I suggest that it will not be sufficient for the Government just to pass this legislation in the hope that everything will go back to normal and that they need do nothing more. There will be political repercussions from this court case, and if the Bill leads to a strengthening of Stormont's powers, the situation will worsen.
Many of my hon. Friends feel that any action of the Northern Ireland Government which affects British troops should 1385 be answerable to an affirmative Resolution of this House. We should not have a situation in which the law of Northern Ireland can be changed without the Westminster Parliament having the final say. Section 75 of the 1920 Act gives the ultimate power to this House. I am convinced that the British people, who well know that 16,000 of our troops are in Northern Ireland, will not be satisfied with the situation that the British Army, whether acting through the Security Committee or in conjunction with the R.U.C., are under the orders imposed by laws passed by the Northern Ireland Parliament. Stormont is now discredited and we have now to rebuild the political situation in Northern Ireland on sound foundations.
Those of us who have taken a stand on the civil liberty aspect of the matter in favour of the minority do not wish to prejudice the majority. We recognise that they too must come round and that, because many of their prejudices and fears are ill-founded, something must be found on which a new structure must be built. This will not be done by wallpapering over the cracks. The tragedy of Northern Ireland since 1969, and even before, is due to the fact that what has been offered has been too little too late.
I appreciate that the Government are seriously considering proposals for reform and I hope that those proposals will be positive. I hope we shall take note of what has happened in the Republic and that we shall take encouragement from what Mr. Lynch and his Government have recently outlined in their statements. There is again hope of achieving some form of settlement. I understand all the difficulties, but it is important to look at the political issues which lie at the root of this matter. This will not be resolved by legal niceties, but by positive political action. There is not much time left and we need urgent action now.
§ 8.12 p.m.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
My remarks will be brief, but I wish to make one or two points which I feel are important. I believe that the Government are right to protect the actions of British troops in Northern Ireland and to seek to put forward a measure to legalise their position following the court's decision today. Having 1386 said that, I believe they have gone the wrong way about it and have turned the whole situation upside down. They have sought to legalise the action of British troops in the context of the Northern Ireland legislation when they should have legalised this action in the context of British legislation.
The passage of this legislation will be a blow against law and order. People like Hume, Cooper, Fitt and others went to law to prove that they had an opportunity under the legislation to make their view known. They said "Let us test Stormont and the good faith of the British Government"—and on this occasion they have been proved right.
My hon. Friend the Member for Mid-Ulster (Miss Devlin) has attempted to table Questions related to the Government of Ireland Act and has sought to question the legality of the situation. But people like Hume and Cooper went to law and won, but they now find that the loophole is to be closed. Every time they try to play the game constitutionally, the rules are changed. This is the danger of the situation as looked at from the point of view of the minority in Northern Ireland. We in this Parliament seek to defend and protect the rôle of our soldiers, but we must look at this matter from the viewpoint of those who are at the receiving end of this legislation. Those people will say, "The British Parliament are seeking to legislate not only for the past but for the future".
What regulations will the Minister of Home Affairs introduce under the Special Powers Act, and will we be able to challenge those regulations? The right hon. and learned Gentleman the Attorney-General has already catalogued the powers contained in the Special Powers Act. I sought in an intervention to show that the Legislature at Westminster would not accept some of those powers. A number of the powers, as has been shown by Professor Paley of Northern Ireland, in terms of detention and holding people without trial, are greater than those exercised by the Smith regime in Southern Rhodesia. This is what we must look at and this is what we are legislating for. This legislation is aimed not only at protecting our troops but at protecting every piece of legislation introduced by the Stormont Government.
1387 Both the present Attorney-General and my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones), the former Attorney-General, have said that as a result of this morning's decision our troops find themselves in an intolerable situation. That is quite true, but they have been placed in that situation because of the type of legislation produced by Stormont. Despite the happenings of last week, I can almost forgive the right hon. Gentleman the Leader of the Liberal Party because of what he has said today since his remarks go to the root of the liberties of this House.
§ Mr. Ivor Richard (Barons Court)
This is an important matter and it is imperative that the House should get it right. The mere fact that Stormont is prepared to grant some kind of legal indemnity to the possible use of British troops in Northern Ireland has nothing whatever to do with the way in which those troops are used, so long as the basic control of those troops rests with the G.O.C. and with this House.
§ Mr. McNamara
I was just about to come to that point. What has happened under the present Government is that the direction of policy involving British troops appears not to rest with our Ministry of Defence or our Home Office but with those in Stormont Castle. This is one of our biggest fears. Our fear is that there will be an alteration to this piece of legislation and then to some regulation or other, so that suddenly we shall be faced with an horrific exaggeration of the type of police State and society which exists in Northern Ireland under the Special Powers Act. This is the real fear about what will happen. This is why we should be in control of British troops and this is why one Parliament should have control under the regulations if these matters are to be legalised retrospectively as well as for the future.
What my hon. Friends and I will seek to do under Clause 1, on similar lines to those suggested by the Leader of the Liberal Party, is to introduce an Amendment making any powers which become legitimised as a result of this Measure, and any regulations which become legitimised as a result of it, subject to an affirmative Resolution of both Houses of this Parliament. Only in this way can we protect our troops and show that we 1388 are criticising what is happening in Northern Ireland, not the actions of our troops, but the political direction which comes from the Government Front Bench sometimes but most of the time from the Prime Minister's office in Stormont Castle.
§ 8.21 p.m.
§ Mr. Michael English (Nottingham, West)
I wish to follow hon. Members who have spoken so far from this side of the House. Like everyone who has spoken I do not believe that anyone wishes to oppose this Bill. Nevertheless, there are unusual features in it. I saw the Attorney-General, or it may have been the Home Secretary, shake his head when an hon. Member said that we are giving powers to Stormont by this Bill. I presume that the headshaking was to indicate that we are giving only the powers that we thought Stormont already had. That argument was demolished by the right hon. Member for Devon, North (Mr. Thorpe).
That is not the sole matter of importance, although it is an interesting argument. What is of real importance is whether we appear to be giving new powers. I am certain that in this country and in Northern Ireland particularly we shall appear to be doing so. If I may stray into the legal minefield which has been set before us by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) and the Attorney-General, I wish to put two questions about the Bill. One is similar to a question which was asked by the right hon. Member for Devon, North. Why, since the Bill gives powers which quite literally are said to berelating to members of Her Majesty's Forces,is there no time limit?
We hear rumours of political initiatives, and none of us wants to discuss that today for we can discuss it at another time, but surely there is no need for an unlimited provision of this character. The Bill is to deal with a situation which has arisen suddenly. Could we not have had a short Bill which included a time limit? I have drafted an Amendment for the Committee stage suggesting that the Measure should lapse after six months unless it was renewed by a Resolution passed by both Houses. When we were in Government and had a whole Crown Colony in rebellion and a rather more 1389 difficult situation in some ways than this there was a provision in the Southern Rhodesia Act that the regulations made under it had to be renewed every year.
Another thing which I find unusual is why we did not do exactly what we are doing now directly from Westminster. I had always assumed that the troops in Northern Ireland were acting under the ancient prerogative powers of the Crown when the military forces are called upon to support the civil power. What would happen in England or Wales or Scotland if troops had to be used there for the same purpose? I am afraid that in this day and age one cannot say that that possibility is too remote to consider. After all, for this purpose the ancient powers of the Crown are almost as great as those of mediæval monarchy.
§ Mr. Richard
My hon. Friend is on a crucial point. Ministers opposite will know that when they came to office they found in the Defence Ministry an examination of this point. The Army in Northern Ireland has no greater right under English law than has any other citizen of the realm. If they have to be used in a riot situation in one of our great cities there would be no such thing as an automatic right to indemnity. That is why some kind of indemnifying proposal is needed for the situation in Northern Ireland.
§ Mr. English
I am perfectly well aware of what my hon. and learned Friend has said and if he will allow me I shall develop the point. I was aware that I was on a point of some interest, to say the least.
Apart from using such powers as may be possessed, although I do not want to develop the argument, the Attorney-General will be aware that there are latent powers of the Crown in certain circumstances; and, whatever the Government of Northern Ireland Act did, I understand that it did not deprive Westminster of powers in this field. It may have given powers to the Government in Stormont but in this field it did not deprive the Government at Westminster of power.
An alternative method which frankly I thought the Home Secretary was suggesting when he made his statement this afternoon would have been to take the 1390 regulations which are now in some doubt from the Special Powers Act and re-enact them here this evening. Oddly enough, this is what I believe most of us who heard the Home Secretary this afternoon thought that he was suggesting. It was thought that this Parliament could take the relevant half dozen Sections of the Special Powers Act or Regulations and thus re-enact for the purposes of the Armed Forces the special powers and regulations which for example apply to constables in Northern Ireland. We are very interested to know why exactly that is not being done. It would have exactly the same effect as this Bill will have in relation to the Armed Forces, and it would be something which this Parliament has done and could undo.
I come back to the question of why there is no time limit in the Bill. Presumably if one can grant powers or immunities to certain types of Her Majesty's Forces or say that the laws shall not preclude Her Majesty's Forces from operating and if one grants powers to constables one grants them to the Armed Forces, presumably one can attach such limitations as one cares to have. Presumably one could limit actions in certain circumstances, actions which the troops may take. They are still under our orders, but they might not be immune if Stormont objected.
Another point, again in connection with the perpetuity of this enactment, is that it does not solely relate to the existing situation. This is where I challenge the Attorney-General, who says that we are not doing anything new, but are merely putting back what was the situation yesterday. Surely it is within the power of Stormont, once this Bill is passed, to pass some new regulation which does not now exist under the Special Powers Act and give another set of rights or immunities to both its police constables and our Armed Forces. In that respect, this Bill goes further than merely putting the law back where it was yesterday, does not it?
I come finally to the point mentioned by my hon. and learned Friend the Member for Barons Court (Mr. Richard). I shall not go into the details, but, dealing with another subject last night, I mentioned this peculiar quality of English law that not only can the institutions of 1391 the State enforce the law against individuals; individuals can go to the courts and enforce their rights under the law. This is a very good example, because they can do that even if it is, as it is in this case, against military servants of the Crown. Yet, when the Home Secretary made his statement today and my hon. and learned Friend the Member for Northampton (Mr. Paget) pointed out that this would not be possible in the case of Community law, my hon. and learned Friend was laughed at by hon. Members opposite. But it is the exact opposite to the principles, of what is known as public law in the Roman law system. Not even in the case of a civil servant of the Community acting illegally would one be able, without the permission of his masters, the Community institutions, to bring an action against him under the Community law, because it includes the Roman public law provisions.
Last night, the Solicitor-General spoke to an Amendment which discussed this very point. Unfortunately, the hon. and learned Gentleman did not have the courtesy to deal with the point which, as sometimes happens, by an accident of time, has been illustrated in its opposite English quality the day after. I hope that the Attorney-General will instruct his learned junior to reply to that basic point at a later stage of another Bill.
§ 8.32 p.m.
§ Mr. Alexander W. Lyon (York)
I do not like the idea of rushed legislation, and I am sure that my distaste is shared by other hon. Members. It is only because of the urgency of the military situation in Northern Ireland that one even contemplates the proposal to put through a Bill in one day following a judgment which apparently has changed people's interpretation of the law. Inevitably, in such rush, there is the possibility of error.
Without going into the matter in any detail—because the House would find it tedious for the legal argument to be pursued—I agree with the interpretation of the Bill expressed by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones), and I do not think that it is met by the point made by the hon. and learned Member for Montgomery (Mr. Hooson), because that 1392 part of this morning's judgment was dealing with another aspect of the matter.
I am interested in the political consequences of this legislation. The Government are saying that the position should be as it was thought to be yesterday. On that, there is a difference between the parties. It has been the policy of the Labour Party for some time that the responsibility for security in Northern Ireland should be vested in this House, not only that orders about security should be the responsibility of the United Kingdom Government but that the legislation empowering the Forces to implement those orders should be the responsibility of this Parliament and not of Stormont, and that a change of venue for deciding the powers of the Forces would have an enormous salutary effect upon people in Northern Ireland.
The argument has been pursued at length in numerous debates, and I shall not take it any further. What the Government are doing is saying that they will continue with the existing policy of assigning to Stormont the right to decide the powers of the Forces to implement security. On that there is a substantial political cleavage between the two sides of the House. I do not think it should simply be pushed through in emergency legislation. Time should have been taken to consider the matter. After all, as my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara) pointed out, there are important effects that will follow in the psychology of the people, who will regard themselves as discriminated against in Northern Ireland if we push through this overturning of a Northern Irish judgment in one day. It is bound to have some effect on John Hume and upon those who think like him. They will think that the policy of pursuing peacefully redress through the courts has somehow been frustrated by the Westminster Parliament; so on that ground alone it would have been wise, in my view, for the Government to have taken time to consider what their reaction to this should have been.
In the meantime, the Forces have to maintain law and order and to be protected aginst any kind of civil suit for redress against them personally. We could have quickly passed indemnity legislation covering them for acts in the past and 1393 until new amending legislation was considered. This was the moment when the right hon. Gentleman the Home Secretary might have considered this whole problem of who ought to be responsible for security in Northern Ireland, and ought to have come forward with more carefully considered legislation. That, inevitably, would have taken time, though I am bound to say that since the issue was raised by Mr. Justice Ackner last year and was raised again in Northern Ireland some time ago, it is surprising, to say the least, that there was no provision available in Whitehall for what would happen if the judgment went against the Government.
After all, this is a hastily constructed piece of legislation, and surely it would have been possible to have considered in greater depth what would be the effect if the judgment went against the Government.
I am concerned with rather more than merely the form of the legislation. I suggest we should have taken time to consider it. That may be met by the Amendment which has been suggested by the Liberal Party and some of my hon. Friends. I had an Amendment to rather different effect but all the Amendments seek to make the point that this should be legislation for only a short period, to give us time to take stock and consider.
We have, after all, reached a watershed. The Chief Justice of Northern Ireland has decided that in many respects troops have been acting illegally. It is not only Regulation 38 that was made under the Special Powers Act. In implementing the policy of internment under the Public Order Act they have been acting illegally in so far as they have been pursuing the work of the Constabulary as members of the Armed Forces; because the Northern Ireland Government had no power to ask the Armed Forces to implement this particular provision of Northern Ireland legislation. Therefore, in a much wider context than Regulation 38 the troops have been acting illegally.
§ Mr. A. W. Stallard (St. Pancras, North)
Is the hon. Gentleman saying that the legality of interrogation in depth may also have been in question?
§ Mr. Lyon
On that matter the hon. Gentleman draws me into a chestnut 1394 very much of own taste, because I do not believe that interrogation in depth is legal either under this legislation or under any existing legislation. In my view, interrogation in depth has no legal validity whatsoever and I hope that the all-party committee, when it reports, says just that and that we then have to consider again the whole question of interrogation in depth. I say that not only for Northern Ireland but because I dislike the idea of interrogation in depth wherever it takes place; and I hope that we in this country will consider whether it is necessary and, if so, under what conditions it ought to be conducted.
Having widened this aspect of interrogation in depth, the whole principle applies; when are the troops acting validly in exercising police operations in relation to situations of disorder in the civil community? My hon. Friend is absolutely right. There is no legal justification in English law for troops to have such powers unless they are exercised under a State of Emergency which is called into being by an order of this House.
In that respect there is need for permanent legislation to consider what the powers of troops should be in situations of civil commotion and disorder. That applies not only to Northern Ireland but to this country. Once again we should take time to consider the general problem, which is not peculiar to Northern Ireland. The Home Secretary might very well have produced a different type of Bill, limited to covering the immediate repercussions of the judgment, and should then have reconsidered the whole question of what the powers of troops ought to be in Northern Ireland and this country.
§ 8.40 p.m.
§ Mr. Ivor Richard (Barons Court)
I had not intended to intervene until the Attorney-General referred to me in the course of his remarks and until I heard some remarks by some of my hon. Friends. This Bill is basically about a simple issue. It is in effect indemnifying legislation although it is not quite expressed in that way. What it is doing, retrospectively, is attempting to remove a statutory bar which existed on the power of the Northern Ireland Government to legislate in respect of British Forces. I believe that the bar as such is absolutely right.
1395 The first question we have to ask is: do we need to indemnify troops on active service in Northern Ireland? Flowing from that, if we do need to indemnify them in some way because of certain things that they are doing in Northern Ireland, is this Bill the right way to do it? I think that I may draw issue with some of my hon. Friends on the first point. It is clear to me in law, in common sense and in justice to the ordinary soldier, that there has to be some form of legislation indemnifying him against some of the ordinary legal consequences of what he is obliged by his service in the Army to do in Northern Ireland.
When the Army first went into Northern Ireland it went in on the basis of its common law duty to go to the aid of a civil power and as such had certain limited rights. For example, it could not in pursuance of that duty stop a motor car or conduct a search; it could not under those powers—which are no different from the powers which any of us has—go into a house where it thought there might be ammunition or explosives. It could not have been permitted to release C.S. gas in the streets to disperse a crowd except In limited circumstances and it could certainly not have fired rubber bullets. If firearms had been use by a soldier in Northern Ireland, then under the common law, irrespective of whether he could justify the action, he would have been accountable. The ordinary soldier was, under the common law, placed in an utterly intolerable and impossible position.
If he were given a lawful order by a commanding officer to use C.S. gas or some degree of force, or firearms, and he obeyed, he was then accountable in the ordinary civil courts, just as if he had been a private citizen. If he disobeyed his officer's order he would have been court-martialled. One of the things that I was concerned about at the Ministry of Defence was to clarify the legal position of the soldier in the United Kingdom when on active service. There is great force in what my hon. Friend the Member for York (Mr. Alexander W. Lyon) says about the need for clarification.
It may be that in certain circumstances troops would have to be used for riot situations on this side of the St. George's Channel. I hope it never comes to that, but if one considers the industrial history 1396 of the past three to four weeks it is not inconceivable that at some stage hon. and right hon. Gentlemen opposite might have had to consider using the British Army, which might have come into conflict with some of the people then on strike. In that situation it would have been crucial for the legal position of the soldier to have been clarified. At the moment English law is deficient in this respect, and whatever comes out of this mix-up which we are trying to rectify this evening, someone in a senior position on the Front Bench should take the rectification of this anomaly very definitely in hand.
I therefore conclude that as far as Northern Ireland is concerned British Forces need some form of legal indemnity for the acts they are bound to have to carry out as part of the duties they are performing there. The sole question for me tonight is whether this Bill is the way to do it. The one advantage of this Bill is speed; it looks like the easy way of doing it. To look at the massive regulations already made under the Special Powers Act and retrospectively, so to speak, remove the restriction on their applying to British Forces would seem to be a quick way of doing it. I must say this to the Front Bench, however: I think there is force in some of the points made from the benches behind me, and indeed by the right hon. Gentleman the Leader of the Liberal Party. I think it very important that if we are to indemnify the troops in Ireland in this way the Government should emphasise, and re-emphasise, and go on emphasising, that the control for security matters on the use of British Forces rests with the General Officer Commanding in Northern Ireland, and ultimately, therefore, with this House of Commons. I do not think they will be wholly successful in emphasising this in Northern Ireland; there is force in what some of my hon. Friends have said, that the effect of this legislation will be misunderstood in Ireland, but I think it is terribly important that they should make the attempt.
I hope, too, that whoever is winding up this debate will try to tell us why the Government have chosen to perform this act of indemnity in this particular way. Why could it not have been done by means of a more general legislative instrument? Why during the past 20 1397 months could not appropriate consideration have been given to the legal position of the soldier so that this could have been properly clarified, so that he would have been better protected? On this particular aspect of the matter we are no further forward now than we were over 20 months ago when, in fact, I initiated this very investigation and this important matter in the Ministry of Defence. It is disappointing that nothing has been done about it for the past 20 months and one thing that comes out of the confusion over this matter is that that, at any rate, will be put right.
§ 8.48 p.m.
§ Mr. Stanley R. McMaster (Belfast, East)
I do not wish to detain the House long but I think it right that there should be a contribution from one on this side of the House who represents a Northern Ireland constituency. The House well knows that the Bill cannot be allowed to pass through the House without a very sincere tribute being paid to the work which has been done by the Army in Northern Ireland. Ever since we introduced the reform programme in Northern Ireland, disarmed our police following the Hunt Committee's Report and disbanded the B Specials we have been very much at the mercy of the terrorists. Within the past 24 hours we have seen in this country just how vicious their attacks on unarmed civilians can be.
The Army has done a marvellous job. In the course of 1971 they uncovered some 26 machine guns, 244 rifles, 92 shotguns, 244 pistols, revolvers and other weapons and over 156,000 rounds of ammunition, which an unarmed police force could never have done. Therefore, the need for the Bill speaks for itself, particularly when one remembers how these explosives can be used, as they were at Aldershot yesterday.
I should like my right hon. Friend to say something to reassure the public in Northern Ireland that, in spite of this decision of the Divisional Court and the consequential doubt as to the state of the law, the Army will continue—and I hope are even continuing at the moment—to exercise all the power that they have exercised hitherto to stop cars which are acting suspiciously or which they have grounds to suspect may contain terrorists or gelignite, and to arrest and to 1398 search houses either on their own initiative or where the R.U.C. have grounds for suspicion.
I take issue with what the hon. Members for Salford, West (Mr. Orme) and for Kingston upon Hull, North (Mr. McNamara) said. The prime need in Northern Ireland must be to restore law and order. We have seen an absolutely shocking devastation. In the past two and a half years, 252 people have been killed in Northern Ireland—51 soldiers, 18 policemen, 7 members of the Ulster Defence Regiment and 176 civilians. Over 2,500 have been injured.
§ Mr. McNamara
Would the hon. Member accept that everyone wants to see law and order restored in Northern Ireland, but that it depends on how one defines the words "law", "order" and "justice"? As he is giving his interesting statistics, would he give the numbers, before the introduction of internment and those after, of deaths, injuries, woundings and so on?
§ Mr. McMaster
I should be glad to try to do so in a moment, within the limits of this debate.
I was saying that over 250 people have been killed and 2,500 injured in the past two and a half years. Altogether, there have been 1,410 explosions in Northern Ireland. We have just had one in Great Britain. In the past year, since the beginning of 1971, it is estimated that 11,786 pounds of gelignite have been used and another 5,000 lbs. captured by the Army. These are terrible and frightening figures.
The hon. Member for Kingston upon Hull, North asked, perhaps trying to bear out his own point, what had happened before internment. The number of bomb outrages increased before internment from 16 in January last year to 68 in July. Shooting incidents numbered four in January and 53 in July. In other words, the campaign had intensified during the first six months of 1971, before internment, and it was this intensification, I regret to say, which made this measure of internment essential to protect and to reassure the public in the face of such a vicious onslaught by these terrorists, these members of the I.R.A.
§ Mr. McNamara
Would the hon. Gentleman now answer my question? 1399 What was the escalation after the introduction of internment?
§ Mr. McMaster
I regret that I do not have exact figures with me, but I gave the exact figures in our last debate on Northern Ireland. Certainly the number of explosions has been falling monthly. It is lower this month than last and was lower last month than in the month before. Internment has been elective in decreasing month by month the number of killings, murders and explosions in Northern Ireland—
§ Mr. McMaster
I shall not be tempted to go further into that. Suffice it to say that with this background of vicious assault on people, one wonders how hon. Members can talk about the necessity for political reform. There is clearly a body at work in Northern Ireland, and in Britain, whose one purpose is, by force of arms, to reunite Ireland. They make no secret of it and they are prepared to stop at nothing to achieve that object.
A comprehensive programme of reforms was put into effect by the Northern Ireland Government. It included the disbandment of the B Specials, which was something demanded in Londonderry, and the disarming of the police. The I.R.A. immediately showed its bona fides by stepping up its campaign of violence at that stage.
§ Mr. McMaster
I wish to deal with this very briefly. The hon. Gentleman knows very well what the Widgery Tribunal is inquiring into in Londonderry. There has been a concerted effort, both recently and in 1969, to break down law and order in Northern Ireland. In the three days preceding the trouble in Belfast, there had been concentrated, savage and vicious attacks on the police. They were attacked from the tops of high buildings with petrol bombs and stones. Sharpened railings were hurled at them. I saw some of this. Four hundred police 1400 men were injured. At that time not one shot was fired. The police were being driven into the ground.
§ Mr. McMaster
When they used tear gas, shooting broke out in Belfast and in Newry, and this resulted in Protestant reaction. I am surprised that the reaction did not come earlier.
By and large—I say as firmly as I can—the Protestant population, and the majority of Catholics in Northern Ireland, who are suffering more than anyone else in Northern Ireland, have shown considerable restraint in the face of savage attacks upon persons which have resulted in the deaths of many civilians and members of the police and Armed Forces, and the destruction of much property. They have shown tremendous restraint. I ask my right hon. Friend the Home Secretary to pay a tribute to the people of Northern Ireland for their restraint and to show his confidence that Stormont will not yield to the request from hon. Members opposite, notably from the hon. and learned Member for Barons Court (Mr. Richard), about the transfer of security or the balance of security from Northern Ireland to Westminster.
The Government's main aim must be to deal effectively with the terrorist. He can be dealt with most effectively by the people on the spot who know the form. Therefore, the present set up, with the security committee in Northern Ireland deciding how the police and the Army shall operate in order to bring to an end the terrorist campaign, is the most effective way of dealing with it.
I ask my right hon. Friend to say that he has confidence in the Stormont Government's ability to handle this terrible situation, working in conjunction with the Army, through Westminster, and that the Government intend to place first and foremost the aim of completely restoring law and order in Northern Ireland and, indeed, throughout the United Kingdom.
§ 9.0 p.m.
§ Mr. A. W. Stallard (St. Pancras, North)
I will not detain the House for more than a few minutes because I can agree quite happily with most of what has been said from this side of the House. A few days ago I expressed my dismay 1401 that every time we discussed the situation in the Six Counties it seemed to take place during or after a crisis or emergency situation. I asked the Home Secretary to try to arrange a debate in which we could discuss rationally and without crisis some of the important things we would like to debate. No one can blame the Government for what they are doing tonight, and the outrage yesterday is still fresh in our minds. But we can blame them for lethargy in taking the necessary positive steps to try to alleviate or prevent some of the crises which are occurring almost every day.
I want to ask a few non-legal questions. Like other speakers, I hesitate to get involved in a legal discussion which is much better left to those who are qualified. But even those who are qualified have taken 50 years to find a loophole. It might have been better left to my hon. Friend the Member for Salford, West (Mr. Orme) and myself, who are engineers, and could possibly have stopped up that loophole before 50 years had elapsed.
From my personal experience in the Six Counties, I can emphasise the shattering effect that this discussion and the Bill will have on the Catholic community there. The people there will interpret this as meaning that if they act legally within the constitution and the Government lose, then the constitution will be changed. It is almost like the Conservative prospective parliamentary candidate who was appearing before his selection committee and, after his great speech, said: "Ladies and gentlemen, these are my principles and if you do not like them I will change them". That is what is happening in the constitution and the law in the Six Counties and it is a very unsatisfactory state of affairs.
I am encouraged by the assurance that there is to be a debate in the very near future such as I have been seeking and I will save some of my points for that occasion when I hope to catch the eye of Mr. Speaker. As a trade unionist, not a lawyer, I have always been suspicious of panic agreements in the same way as my hon. and learned Friends are concerned about panic legislation. No good ever came out of panic and we would have been better to spend more time considering the Bill tonight than entering into this almost panic discussion.
1402 I have a simple question which was touched upon by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones). I have read the Special Powers Act, 1922, and Section 7 in particular. I thought that Section 7 already gave the Government the powers they are seeking in the Bill. When the Home Secretary replies will he say that he considers, in the light of today's judgment, that Section 7 is unconstitutional? If it is unconstitutional, does that not—or ought it not to do so—put the rest of the Special Powers Act under the microscope as we have been asking? If Section 7 is unconstitutional, then much of the rest of the Act is unconstitional also.
I am particularly disturbed because some of us have been arguing that certain powers should be transferred from Stormont to Westminster. The Bill seems to me to put more powers in the hands of the Northern Ireland Parliament. It frightens me terribly, and it will frighten many people who have already suffered under the powers that exist there, to think that its powers will be strengthened.
Twelve months ago, hon. Members on this side tried to introduce a Bill of Rights. It would have taken care of all the points raised tonight, and many more besides. We shall try again in the near future. If the Government give it their blessing, instead of putting on the Whips against it, we might solve many problems and take some constructive action.
Another point that worries me as a layman is the question of retrospective legislation. As an active shop steward, I was always brought up to believe that the speech is not to be taken as the agreement; what counts is what is written down. So it is all very well for the Government to give assurances and to make fine speeches, but in the end it is the Bill that operates, not a speech. Clause I says:The limitations imposed by paragraph (3) of section 4(1) of the Government of Ireland Act 1920 on the powers of the Parliament of Northern Ireland to make laws shall not have effect, and shall be deemed never to have had effect, …That seems to me to say that the Bill is retrospective to 1922 at least. If it is, what are the implications? It is not retrospective to 1969, as some newspapers have said. As I read it, it goes back to 1922, and it may well, therefore, have 1403 many more serious repercussions than I have been able to envisage in the short time since I first read the Bill.
I am also concerned that we seem to be giving the Northern Ireland Parliament more powers than it has had hitherto. That worries me, because of its possible future legislation. We are giving it an open-ended piece of legislation, and it has only to fill it in. I am frightened to death, with the present Government in the Six Counties, about how it will be filled in. Most of us will be worried about the possibility of putting our troops in even more danger if we place legislation like this in the hands of the kind of people who operate at Stormont.
I hope that the Minister who replies will be able to reassure those of us who are not legally-minded and who do not understand all the legal niceties, but who understand the effects the Bill will have, particularly its retrospective effect, and the fact that it appears to give Stormont much more power than it should have.
§ 9.8 p.m.
§ Mr. Ian Percival (Southport)
I rise to make just one point of immediate practical importance that the House seems to be losing sight of.
What we are discussing is not quite such technical lawyers' stuff as some hon. Members would have us believe.
Our Forces in Ireland are faced with a very difficult task of assisting the police forces to keep law and order. One of the situations most likely to result in a breach of law and order is the gathering of a number of people, commonly called in law "an assembly". An assembly that gets excited and out of hand has the makings of an ugly situation. So our Forces, charged with this difficult duty, ought and were thought to have the authority to order three or more persons forming an assembly to disperse. It seems very sensible and very practical that they should have that authority, but it is no good having authority like that unless there are some sanctions to be visited upon those who refuse to obey the order. That is what happened in the case which gave rise to the proceedings in question which give rise to the purpose for which we are here today.
A commissioned officer, having ordered three or more people to disperse, 1404 found that his order was not obeyed. Accordingly, those who had failed to obey that order were prosecuted for failing to comply with an order to disperse given under Regulation 38(1). It has now been held by the highest court which has yet pronounced upon the matter that, as the regulation was invalid, the conviction of an offence contrary to that regulation could not stand.
Perhaps I may illustrate the practical consequences by departing from what is sometimes regarded as lawyers' language. If a commissioned officer were now to order or direct three or more people to disperse, he might be met by whatever is the Northern Irish equivalent of being told to take a running jump. The person concerned would commit no offence in doing that, because the officer would be unable to enforce his order, there would be no criminal offence, and the sanction would have gone.
We are also concerned with indemnity. That is an important consideration. However, the most important and immediate practical consideration is to restore the position so that our Forces, charged with this duty in Northern Ireland, are able to give such directions or orders as they consider necessary to keep order and that there shall be some sanction with which to enforce any such directions or orders.
§ Mr. Thorpe
Will the hon. and learned Gentleman accept that no one is saying that these powers should not be given to Her Majesty's Forces? The argument is whether Stormont or this House shall have the power to confer them.
§ Mr. Percival
The hon. Gentleman is less than generous. I have heard every word in the debate, except for two minutes, the purpose of which may be guessed since I have been here since the beginning of the debate. Had I not been here from the beginning of the debate I might not have felt it necessary to leave for that short time.
I appreciate the point made by the right hon. Member for Devon, North (Mr. Thorpe). My purpose is to remind the House of urgent and practical considerations which appear to have been 1405 lost sight of. The debate seemed to be going very wide and getting on to matters of great interest and importance which will no doubt have to be considered in this House on other occasions. I wanted to bring it back to what seems to me the most immediate points of practical importance with which we are dealing in this Bill.
§ 9.13 p.m.
§ Miss Bernadette Devlin (Mid-Ulster)
A number of hon. Members have claimed that they are perturbed at the Bill now passing through the House. I am astounded not only that the Bill should be presented in such a short period of time but that it appears to be the intention of both the Labour and the Liberal Parties not to vote against this legislation.
A number of points have to be raised on the whole question of this kind of legislation with relevance in particular to Northern Ireland and in general to the entire British public.
Right hon. and hon. Members have referred to the effect of this legislation on the people of Northern Ireland. There are those among us who, from the introduction of the Army, from the use once again of the Special Powers Act and of internment, have time and again pointed out the effect that it would have upon the community. Each time we have been answered by cries about the maintenance of law and order, respect for the law, and an orderly society. They say we should use the democratic channels to pursue our ends. But at each attempt to pursue those ends within the democratic channels, either in Westminster or in the North of Ireland, those democratic channels have been cut as fast as we have opened them.
Members of this House stood aghast in July, 1970, when the Stormont Administration, in a short period of 18 hours, rushed through the Criminal Justice Provisions Act. After a hurried 18-hour debate they produced mandatory gaol sentences for those convicted of riotous behaviour or behaviour likely to lead to a breach of the peace.
We were told in the Downing Street agreement, supported by both the Tory and the Labour Governments, that theyreaffirmed that in all legislation and executive decisions of Government every citizen of Northern Ireland is entitled to the same 1406 equality of treatment and freedom from discrimination as obtains in the rest of the United Kingdom, irrespective of political views or religion.The general burden of the Downing Street agreement, though many of us said it was too late and certainly not a great revolutionary programme, was that this House stood by its claims that British standards of democracy, such as they were or are, should obtain in the North of Ireland.
What we see in the present legislation is not British standards as they obtained but Northern Ireland Government standards of corruption now being brought to this country by methods used by the Stormont Administration of rushing important legislation through. It took Stormont 18 hours. This House is about to rush this legislation in one short evening—through the House of Commons, through another place, and back to this House, to be made law.
I understand the Government's position. They feel they have got themselves into a pretty pickle, for they have found themselves with an illegal Army in the North of Ireland. That is the Government's problem, not mine. I have always maintained that it was an illegal Army.
Concerning this question of rushing the legislation through, six months ago I personally wrote to the Under-Secretary of State at the Ministry of Defence pointing out to him the precise point made in this legislation, that the Northern Ireland Government, under the Special Powers Act, did not have the right to pass legislation in respect of Her Majesty's Forces. In his answer, the stupidity of which was equalled only by its brevity, he said it was not his business, it was the Northern Ireland Government's business, and, anyway, it was not mine—or words to that effect. I attempted several times to raise these matters through the usual democratic channels of this House, taking Questions to the Table Office. I was told that it was not a problem for this House, that it was a matter for Northern Ireland legislation. Now, because a court in Northern Ireland has passed a judgment, all of a sudden it is a problem for this House, a problem which is to be solved in a matter of four or five hours.
Are we to take a general precedent from that—that, when this Parliament 1407 passes a law, it is a Bill which is a declaration of the law, not an attempt to change the law? I would dispute that personally, but the Bill claims to be a declaration of the law. Are we to understand that when this Parliament, or any Parliament in the United Kingdom passes a law, and it is enacted, and it is acted upon by the courts and interpreted by the courts, the Government, if they do not like it, can say they will declare their own interpretation of the law and make it binding on the courts? If that is the case, let us be honest about it and dispense with courts altogether, if the interpretation of the law is to be declared on the Floor of this House.
I dispute that this is a declaration of the law. It is a changing of the law. It is a law which says that, whereas up to and including this evening, in Northern Ireland the Government did not have power to pass or enact legislation in respect of Her Majesty's Forces, from this evening, when this Bill becomes law, as it undoubtedly will, that Government will have had that power, and that power will then apply, since this House still refuses to exert any power over legislation passed at Stormont. The powers under this Bill will apply to any other legislation passed or powers given by the Northern Ireland Government. Soon we may have commissioned officers of the British Army doing the debt collecting against rent strikers in Northern Ireland. What will this House do about that?
Because of the immediate urgency, as the House may see it, of the position of the British Army, the general precedent set in this House this evening is being overlooked by hon. Members. The miners have just finished their hard struggle against the Government and the Coal Board. During that strike the question of picketing was raised. The Home Secretary said that he would review the law in reference to picketing. is that the law, or are we to understand that that law may be reviewed as this law is being reviewed? Are we to understand that picketing is legal until such time as it becomes effective against the Tory Government, whereupon laws will be passed to make picketing illegal?
§ Miss Devlin
Is such a law to be enacted against all members of the working class in this country who will be forced into conflict with the Tory Government time after time? Will similar legislation be enacted to deal with them?
There are two main points on the drafting and passing of this legislation. First, in the general sense it is proven that the Government have no respect for law or order, for the courts or for the rules of democracy, and that the Government, when they find themselves at the wrong end of their own rules, simply reverse law and order and democracy to make themselves once again the winners. If hon. Members allow that to happen tonight, it will happen not only in respect of the British Army in Northern Ireland but in respect of everyone else who attempts to stand against the Tory Government.
Secondly, in the context of Northern Ireland, nothing is more sure than that the Government will finally and decidedly cut off recourse to further action, as they have done in the case of Mr. Hume and others referred to today, and in the case of Mr. William Moore, against whom civil damages have been awarded in the courts. This Bill effectively prevents us taking any further action to prove the legality of our position. That means that there are masses of people who have no legal, peaceful redress, and on your heads be that problem.
§ 9.22 p.m.
§ Mr. Emlyn Hooson (Montgomery)
The hon. Member for Mid-Ulster (Miss Devlin) is right in suggesting that what we are doing this evening is a very serious act. The House finds itself in a hard situation, and hard situations, like hard cases, tend to create bad law.
The fear has been expressed that under the cloak of the immediate necessity of extending the protection of this House and Parliament to the troops we have sent to Northern Ireland we may be enacting something which we shall later regret. This is a true fear, and I hope the Government appreciate this point. We are asked to pass a Bill which will be retrospective at least to 1922 and which will, therefore, affect the rights of people in Northern Ireland, we are being asked to act hurriedly, and the House hates doing that, and we are asked to do something which we cannot easily 1409 revise later. The Government have a duty to the House to assure it on some of these matters.
The alternatives are clear. Either our troops are withdrawn tonight from their present duties in Northern Ireland or we pass the Bill. I have considered the Bill and at first blush it does not appear to me to add greatly to the powers of the Northern Ireland Parliament. I hope I am right in this, although often one's first reaction to legislation is wrong. The power over the Armed Forces of the Crown rests firmly with this House through the Officer Commanding in Northern Ireland. It is only this House which can control what is done by the Army. What is in question is the legal responsibility for the acts performed by the Army. It is necessary to pass this legislation if there is to be legal protection for what the Army does.
I express some surprise at the decision of the Northern Ireland Divisional Court since I see that the judgment of Mr. Justice Ackner does not seem to have been referred to. [An HON. MEMBER: "Yes, it was."] Well, if it was, I missed it. I cannot understand why it was held that this was not in pursuit of law and order.
In passing this Bill, we as Parliamentarians will be acting against our instincts. It is a bad precedent to pass in a hurry something which will have a retrospective effect. But let us consider the alternative. If the troops are withdrawn from their present duties in Northern Ireland, what will happen? It must be remembered that those troops were welcomed in Northern Ireland as an alternative to the forces employed by the Ulster Government. Section 4 of the Government of Ireland Act still applies and the duty to maintain law and order rests firmly with the Government at Stormont. If our troops were withdrawn, they would have to employ their own people to do this job. The real choice which the hon. Lady the Member for Mid-Ulster and her colleagues face—and I say this to the hon. Lady because I have considerable sympathy with her—is that if the Army is withdrawn, then surely the B Specials will be strengthened by the Stormont Government. Other forces would be brought in to replace them. Would that be preferable to the hon. Lady?
§ Miss Devlin
I wish to ask the hon. and learned Gentleman about the alternative to withdrawing the British Army from its present duties. As I understand it, the problem arises that the British Army are acting under the Special Powers Act without being constituted a civil authority. This does not preclude the British Army from assisting the civil authority, namely assisting the police and allowing the police to carry out the Special Powers Act.
§ Mr. Hooson
When the hon. Lady looks at the practicalities of the matter, she surely must see that the Army cannot possibly do what this House requires it to do, without acting under the Special Powers Act. I was one of those who doubted from the start the wisdom of sending in the Army at all. I do not believe that any solution for Ireland will be engineered from this House. The problem of Ireland has to be settled in Ireland.
Let us face reality. As a trained constitutional lawyer I hate to pass legislation of this kind, and indeed we must all hate it as Parliamentarians. What we are doing is an extremely serious matter, and I hope that the Government will be sensible enough to ensure that we will have the opportunity of looking at this Bill again when it becomes law and will have the opportunity to debate it. My cursory impression is that it does not add greatly to the powers of the Northern Ireland Parliament, but many much greater lawyers than I have been wrong in their impression of legislation which has been passed quickly through this House.
It seems to me that this House has no option this evening but to pass this Bill. We have sent troops to Northern Ireland and they have been welcomed there to maintain law and order. We would all be lacking in our duty if we did not cloak those troops with the necessary powers, even though they are retrospective. But we must recognise that this is an exceptional and serious step and should in no way be regarded as a precedent.
§ 9.30 p.m.
§ Mr. Clinton Davis (Hackney, Central)
I support the last words spoken by the hon. and learned Member for Montgomery (Mr. Hooson). It is of course 1411 essential that this House should reconsider this legislation at the earliest opportunity. I should have thought that enough hon. Members have indicated that they have grave doubts about the draftsmanship of the Bill and whether the Bill is the right vehicle for this sort of legislation.
One very important point which remains to be answered, and which was postulated with great force by the Leader of the Liberal Party, is, does this Bill in fact confer greater powers on Stormont'? If that were its effect, it would be totally disastrous because Stormont has already Draconian powers which it is exercising, and responsibility for exercising them falls from day to day and hour to hour on our Forces. It is right for that reason alone that we should look very carefully at this legislation.
We must also see how this is viewed in Ulster. Very grave doubts have been expressed about the situation there in the light of this legislation. We have to make quite sure that we do not rule out, as the hon. Member for Belfast, East (Mr. McMaster) suggested, a political initiative. He was speaking, I think, not for the forces of law and order in Ulster but for those who bury their heads in the sand. It is absolutely essential that we should apply political initiative at this stage and that we should root out injustice wherever it appears. There was unquestionably an injustice in the case of Moore v. the Chief Constable of Ulster and the Minister of Defence when it was suggested that three members of the British Forces were lying before a tribunal.
§ Mr. McMaster
I think the hon. Member has misinterpreted what I said. I do not rule out political initiative in the ordinary sense, but I say that priority must be given to restoring law and order because the situation with which we are dealing and with which the Army is dealing is meeting an armed attack by I.R.A. terrorists. In those circumstances to talk about political solutions when the only solution which they see is to annex a part of the United Kingdom to a foreign country by force is only to encourage terrorists to increase their efforts.
§ Mr. Clinton Davis
I deeply deplore the activities of the I.R.A., but not for one moment could I embrace the political 1412 philosophies of the hon. Member for Belfast, East, which I think are leading Ulster to disaster.
I express doubts about the draftsmanship of the Bill. The second finding of the court that Regulation 38(1) is a law is in itself a matter of grave doubt. This is a matter which could be overruled, and I should have thought it essential that this point was underlined in the Bill, but the Bill does not do that at present. A subsidiary submission was made by those representing the successful appellants that Regulation 38(1) does not conform to the powers of the Northern Ireland Parliament because it is excessively far reaching and oppressive. It may be that that point also should be dealt with in the legislation, but so far it has been ignored.
The third point as to the retroactive nature of the legislation is what effect it will have on claims which have already been instituted—that is to say before the Bill is enacted. Are those with claims to be denied? If so, it may mean that a person who has perfectly validly brought an action may have to pay the costs of that action. That would be an unjust situation.
I rarely praise the House of Lords, but I think that on this occasion the immense power of legal luminaries in the House of Lords may be of very considerable value in sorting out this legislation which has been so rushed and which I think may prove very inadequate.
§ 9.34 p.m.
§ Mr. Stratton Mills (Belfast, North)
My speech will be remarkable for its brevity. The former Prime Minister on many occasions has referred to 50 years of Unionist misrule. I do not agree with him, but this debate underlines one point, the complete and total independence of the Northern Ireland judiciary. It is right to recognise that as the hallmark of a free society.
§ 9.35 p.m.
§ Mr. Albert Booth (Barrow-in-Furness)
I share all the anxieties which have been expressed about the retrospective nature of this legislation. It is sweeping. It is immense. It wipes out a right and a limitation which has been considered fundamental by people who have argued, in the context of the problems of Northern Ireland, that there was a solution to be had by legal methods. I am 1413 sure that it will set back their cause a very long way.
It is one thing to introduce retrospective legislation having given long and careful consideration to all its implications. It is quite another to sweep it away in one evening in this Parliament. One hon. Member said that hard cases make bad law. It is bad Governments and bad Parliaments that make bad law, and the duty lies upon us to determine the nature of the law that we are putting through this House, not only law for the United Kingdom in general but law for Northern Ireland, which is in very sensitive and difficult circumstances.
There are people today who are depending upon what is now the legal position to support claims in the courts. There is the mother of 14 children who had two bullets put through her on "Bloody Sunday". Her life was saved, but her leg was lost. What is to happen to her claim if, by this legislation, the limitations on the Northern Ireland Government are swept away? That question must be answered in detail before Parliament takes a decision.
If it is the case that certain limitations on the Northern Ireland Government are to be swept away and that certain indemnities are to be granted against the actions of troops which have not existed until now, what about the position of those who have claims arising from the actions of those troops? Surely these claims must be safeguarded. If they are not, the bitterness, intense as it is at the moment, must become worse. If the position of claimants is not safeguarded, all the work of those who have sought hard in Northern Ireland to persuade people to believe that there is redress to be had by going to the courts will be destroyed. I think that we will be well advised to consider this Bill long and carefully before sanctioning it.
It would be tragic if we put this Bill through swiftly. It has been generally recognised in this House that for many months now we have needed an opportunity to consider the rôle and the position of British troops in Northern Ireland. It may be that the court decision which has brought about this Bill has created just such an opportunity for us to stand back and to ask why it is that nearly all the hopes that were raised when British troops went into Northern Ireland have 1414 been dashed, and why it is that they have been unable to carry out the rôle that we believed they could fulfill.
If we do not rush this Bill through, we can use the opportunity which has rendered a Bill of this sort necessary not suddenly to sweep away the limitations on the powers of the Stormont Government but to consider quickly how we can change the rôle of British troops in Northern Ireland, to alter the relationship between this Parliament and Stormont, and possibly to create a new initiative to solve the serious and desperate problems of Northern Ireland.
§ 9.39 p.m.
§ Mr. Leslie Huckfield (Nuneaton)
I am no constitutional lawyer but, like my hon. Friend the Member for Barrow-in-Furness (Mr. Booth), having had a further chance to study this short Bill, I am very concerned and overawed by its far-reaching effects. That is why I feel bound to say a few words about it.
Like my hon. Friend, I should like to know what remedy anyone in Northern Ireland with a claim for compensation or damages against our troops can possibly have if this Bill is passed. Is it the fact that they can no longer go to the Government in Stormont? Is it the fact that they can not even come to this Government? Is it now the fact that anybody who seeks to make a claim for compensation or damages against the British Forces may, for example, have to be recommended to go to some international tribunal? The kind of waffly, vague statements that we have had from the Government tonight would suggest that any claims for damages for compensation would be put in a very dubious position by this Bill.
Apart from that, I cannot help feeling that we have had a few too many examples of retrospective legislation passed by this House. Retrospective legislation, particularly on matters like this, goes against the very grain of the European Convention of Human Rights and here is this Government today, admittedly in a very difficult situation—and to a certain extent I can sympathise with hon. Gentlemen on the Treasury bench in their difficult situation—seeking such legislation. Really, is that the right way to act, to pass retrospective legislation against the European Convention of Human Rights 1415 in a particularly difficult and very tragic situation like this?
Apart from this, I cannot help feeling that my hon. Friend the Member for Barrow-in-Furness had a point in saying that at least the Army's rather dubious legal position gave this Government pause for thought. At least we have had time to reflect on the rôle, ownership and control of the Army in Northern Ireland. But instead of taking time and pausing to reflect, we are to rush this legislation through quickly. I feel that a most important point was made by my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara), echoed by my hon. Friend the Member for Barrow-in-Furness, when he said the case of all those who had been urging the people in Northern Ireland to try out the rule of law is quite damaged.
All the advice given to relatives of those who suffered on "Bloody Sunday" to go to Widgery, all such good advice, is now put in jeopardy. We have now the kind of situation where anybody in Northern Ireland who even says, "Try out the law" will be told "It is no good because it will be altered"; and anybody who says, "We shall not even try out the law" is given tremendous encouragement by the passage of this legislation tonight. We have had last week, and even this week, far too many examples of very rushed legislation in this House. This week we have had the European Communities Bill and its ramifications. I personally deplore very much a Bill which not only rushes things through but gives more power to Stormont.
Apart from that, it violates the very fundamental constitutional principle of this country that normally it is Parliament that passes laws but it is the position of the judiciary to interpret them. Tonight we have a position where Parliament passes the law and interprets it. That I must totally deplore.
§ 9.45 p.m.
§ Mrs. Shirley Williams (Hitchin)
It has been very evident from the course of this debate that the House, while anxious to give the powers required by the Government under this law, for reasons very clear to all of us, is nevertheless very deeply disturbed about whether these powers are likely to be exploited in an unfortunate way, and 1416 very deeply disturbed at the speed at which the legislation is being taken.
I begin by asking the right hon. Gentleman the Home Secretary why it was that since the reserved judgment was given, as I understand, by the Divisional Court on 12th January, there has been so little notice and discussion, through the usual channels, of this Bill? It may be that there is a full explanation of that, but I understand that leave was granted on 29th November and judgment was reserved on 12th January. We would have expected at least some discussion through the usual channels about what might be necessary this evening.
Secondly, the assumptions of the Labour Government, to which the hon. and learned Gentleman the Attorney-General referred, were not quite the same as those which at present exist. I fully accept the responsibility of my hon. Friends and myself as Ministers at the time in referring to our belief, which was also the belief of the present Government, that the Army was legally covered in operating under the Special Powers legislation. But I think there was a difference—and I refer to columns 336 of 25th November, 1969, and 1212 of 1st December, 1969, of the OFFICIAL REPORT. The big difference is that the remarks made in those debates were within the context of an expectation of a rapid review of the Special Powers Act with a view to replacing it with amending legislation. I refer to the remarks of my hon. Friend the then Minister of Defence for Administration, who said:Believing, as we do, that the Stormont Government will move to a revision of the Special Powers Act, we look forward to the day when we have only powers necessary for our task."—[OFFICIAL REPORT, 1st December, 1969; Vol. 792, c. 1212.]He went on to say that until that happened we would rely on the Special Powers Act.
The situation now is very different. There is no prospect in the near future of that Act being revised and replaced by legislation of a type more normal in the British Parliament and therefore this is a more serious extension that we then envisaged.
While we all fully accept that the Army must be adequately covered by the protection of the law and that it cannot 1417 be asked to do the extremely difficult and unpleasant job it has to do in Northern Ireland without being aware that it is fully covered by the law, we nevertheless ask the Home Secretary for an assurance that there is no extension of powers involved in the legislation beyond those assumed until twelve o'clock today. I ask this because it is of crucial importance that the question asked by the hon. and learned Member for Montgomery (Mr. Hooson) is answered in the affirmative. He asked for an assurance that this will in no way extend or increase the powers of Stormont.
The Home Secretary will be aware from the remarks of my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) that we on this side of the House are recognising this as "safety first" legislation and wish to do nothing to hold it back. But we want to ask the Government, if the effects of the change in the law are in any way in doubt, for an assurance that they will return to the House to discuss the matter further. We must ask this because the legislation is being taken through the House very rapidly and none of us can be certain of the consequences.
May I ask the right hon. Gentleman whether he will say a little more about the effect on claims? The Bill refers to immunities extending to cover Her Majesty's Forces. The Attorney-General gave us an assurance from the Attorney-General of Northern Ireland, for which we were grateful, with regard to the cases now before the courts arising from the anomalies in the law. Will the Home Secretary give a complete assurance that claims at present outstanding will not be affected by the Bill, in particular the cases being brought by relatives of the Derry victims?
Great fears have been expressed on all sides, not least on this side of the House, about the fact that we are extending the indemnification of the Army to cover the position that we all understood to be the case in the past. In a situation in which the Army operates as it must under special powers in Northern Ireland which are far more extensive than any laws under which it operates on the mainland, we should be much happier—and I gather that hon. and right hon. Gentlemen opposite would be much happier—if we had the parliamentary 1418 reassurance of the emergency procedure that this House has gone through in the last few days, namely the procedure by which every 30 days emergency powers are renewed. We do not expect that at present in Northern Ireland but what we must ask the Government to do is to consider carefully whether in the light of this legislation which we all recognise to be necessary the time has not come to look again at the question of a political initiative in Northern Ireland.
There is a sense in which we can never find a military solution to political problems. My hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara) and others pointed out that this legislation, necessary as it is, will be seen, whether we like it or not, rather differently in Northern Ireland and very differently by the minority there. I plead with the Government, because we share their great concern about the deteriorating position in Northern Ireland, to look again at the even greater urgency and necessity of raising again the whole question of a political initiative, because it seems that this legislation could all too easily be misinterpreted and misunderstood and become another dangerous factor in the Northern Ireland situation unless the Government can give an early earnest of their willingness to try to settle this problem not by military means, which cannot be an answer, but by political initiatives that we shall do our best to further.
§ 9.55 p.m.
§ The Secretary of State for the Home Department (Mr. Reginald Maudling)
As so many hon. Members have said in the course of this debate, this is a very serious matter for which there are very few precedents in the speed with which the House is being asked to consider legislation. I must apologise again for the shortness of notice, but the judgment was known to us only about noon today. We had obviously taken precautions about what we should do once the judgment became known, but until it was given we could not discuss with other people what the proper action should be.
This is a serious matter, as has been said by the hon. and learned Member for Montgomery (Mr. Hooson) and other hon. Gentlemen, and I think the House has recognised the difficulties in which 1419 our troops have been placed by a position which I think, quite frankly, has come as a surprise to many legal Members of this House—and I do not claim to be one. I am grateful to hon. Members on both sides of the House, but particularly to hon. Members opposite, for the understanding way in which they have accepted what we believe to be a necessity in these present circumstances.
The debate has ranged fairly wide at a number of points. I will not go into the broad issues of the Northern Ireland tragedy, but I want to say one or two things about it. First, there should be no misunderstanding about the effect of this Measure. It is to restore the law to what everyone thought it was until this morning. There is no other change at all. As the hon. and learned Member for Barons Court (Mr. Richard) very wisely pointed out, it has no effect on the control of the Army. This is a matter concerning the legal powers of the Army. The way in which those powers are exercised is always under the control of the Government responsible to this House. I am very glad to make that clear. It is most important that it be made clear. Second, there is no increase whatever in the powers of Stormont beyond what everyone, including hon. Members of this House, believed yesterday to be the powers which Stormont then possessed. I will refer to that again in a moment.
On the wider issues and the need for what is called a political initiative, I would argue again that we took a considerable political initiative in proposing talks on a wholly unconditional basis to try to reach agreement in Northern Ireland. I still believe that the right and best way of reaching a lasting solution is by agreement, and that agreement can come only from discussion. There is much argument at the moment that there should be a new political initiative now. I feel that in these matters timing is exceedingly important. As the Leader of the Opposition has said on more than one occasion, proposals made at the wrong moment can be carried away on the wind and their advantages lost. Timing is very important indeed. Therefore, I think it would be quite wrong to allow a sudden, wholly unexpected event such as this to affect the timing of what we believe to be the right way to take 1420 an initiative if we decide that an initiative should be taken.
I fully accept all that has been said this afternoon about the nature of the situation in Northern Ireland and the profound importance of ensuring that what we are doing today does not make the problem any more difficult. That is why I have emphasised that misunderstandings should not arise about the scope of this Bill. While I entirely accept that, I think it right to say that the time to discuss this matter will come in the debate to which the Leader of the House, the Leader of the Opposition and the Attorney-General referred for the discussion of these broader issues, rather than in the context of this fairly narrowly drawn but highly important debate here today.
May I reiterate quite briefly the circumstances that have led to our action today. The Army has been operating in Northern Ireland in support of the civil power since 1969 and everyone thought, until today, that it was operating under the regulations made under the Special Powers Act. That was the belief of the previous Government, it was the belief of the present Government and it was the decision of Mr. Justice Ackner in the High Court in this country.
It is only today that the Divisional Court in Northern Ireland has produced a different view, a view which could be challenged on appeal to the House of Lords. It might be held by the House of Lords to be inaccurate and they may prefer the view of Mr. Justice Ackner, but we cannot spare the time to wait for an appeal to the House of Lords, in practical circumstances, which, from the point of view of our Army operating in Northern Ireland, are very urgent indeed.
This was the position accepted in good faith on both sides and by all concerned. It was believed by both Governments and held by Mr. Justice Ackner that the Army was operating within the Special Powers Act. A different view was taken today by the Divisional Court, and the effect is twofold. There is the effect upon our own Armed Forces, our individual soldiers, who could be held to have been acting illegally and who must therefore be given an indemnity against the consequences of what they were ordered to do by their superiors. That is essential.
1421 Second, of course, the Army must have the powers to operate against the terrorists. My hon. Friend the Member for Belfast, East (Mr. McMaster) said that he hoped that the Army was still going on as before. I must tell him that that is not the case. It would not, in our view as a Government, be proper for the Army to continue regardless of the effect of this judgment. That is why we consider it of such importance to pass this legislation forthwith through Parliament, because, without this legislation, we do not believe that the Army would be justified in such actions as searching vehicles for explosives, searching people for explosives and the many things that they have to do in order to fight the terrorists but which they cannot do under the common law, under which they would otherwise be reduced to operating.
The powers available to the Army under the common law are not sufficient to provide for searching, holding up vehicles, arrests and the many things that they have to do, and which Ministers in the previous Government frankly and rightly said that they had to do under the Special Powers Act.
§ Mr. Maudling
I am afraid that the Army in Northern Ireland, if reduced to the ordinary common law, could do only what any of us as ordinary citizens can do. In order, for example, to search vehicles believed to contain explosives, they must operate under the Special Powers Act, which must be the Act passed by the Northern Ireland Parliament, which has the responsibility for peace, order and good government in Northern Ireland under our present constitution. That is the legal position that we have to face.
The right hon. and learned Member for West Ham, South (Sir Elwyn Jones) rightly commented on the wholly exceptional procedure which was necessitated 1422 by the circumstances. I am glad that he accepts the assurance of my right hon. and learned Friend the Attorney-General and of the Attorney-General of Northern Ireland that there will be no retrospective criminality.
Also, of course, there is no cover in the Bill for any improper action. Therefore, the cases to which hon. Members have referred, of people claiming damages against British soldiers in allegation of improper action, are not affected in any way. The law will be exactly as everyone thought it was until noon today and any action brought on this basis clearly will not be affected.
The right hon. and learned Member also said that there should be a debate on policy. I have referred to that in calling the attention of the House to what the Leader of the House said, accepting the need for an early debate to be arranged through the usual channels on the broader issues.
The right hon. Member for Devon, North (Mr. Thorpe) who has kindly sent me a note explaining why he cannot be present at the moment, raised two points to which I refer with some trepidation, not being a practising lawyer. His first was that, because of the Crown Proceedings Act. 1947, there was no need for a special Bill indemnifying British soldiers. That is not my advice. I share the view of the right hon. and learned Member for West Ham, South that there are obvious reasons under the criminal provisions why the present law would not protect our soldiers without this special provision. I think that the whole House will agree that if there was any doubt about it, we must make absolutely certain that our people are properly protected.
§ It being Ten o'clock, the debate stood adjourned.