NORTHERN IRELAND (Hansard, 23 February 1972)

§ Mr. Maudling
The second point made by the right hon. Member for Devon, North was his belief that the Bill was somehow giving to Stormont greater powers than was originally intended. I think that this was slightly reflected in what the hon. Member for Mid-Ulster (Miss Devlin) said. This was certainly not the case. It has always been the belief that the Northern Ireland Government had the power to legislate for the British Forces. Indeed, the very first regulations they made, nearly 50 years ago, included regulations dealing with the Armed Forces. The point is, as the right hon. Gentleman said, one must make express provision for the Armed Forces in any regulation one makes. The question at issue before the court today, as I understand it, is whether the treatment of the Armed Forces in these particular regulations fell within the concept of the constitution. The court held that it did not. But on the general operation, there can surely be no doubt that preceding Governments, both sides of the House and the general public, and a majority of the legal profession, have always believed that Stormont had these powers. It has come as a great surprise to many people that, technically, they may not have these powers. Therefore, I say categorically that nothing in this Measure will give to Stormont any greater powers than they were commonly held yesterday already to possess. I welcome the opportunity to emphasise that.

§ Mr. Stallard
As I am still a little worried and confused about the question of improper action and about what happens to existing claims, would the right hon. Gentleman explain and enlarge on how one would prove, for instance, improper action by soldiers who are covered or would be covered under the Special Powers Act?

§ Mr. Maudling
The Special Powers Act does not cover anyone against doing 1424 something illegal, and claims against soldiers that were being pursued yesterday, if based on the allegation that a soldier had behaved improperly, remain exactly as valid now and tomorrow as they were yesterday. Any claim against a soldier for doing something unlawful remains totally unaffected.

§ Sir Elwyn Jones
That would apply to the use of excessive force, where that force is not necessary?

§ Mr. Maudling
Certainly. That would be illegal, because it is the minimum amount of force necessary, and no more than that. I am grateful to the right hon. and learned Gentleman for helping to make that important point clear.
I have covered the main points made by the hon. Member for Mid-Ulster. She asked whether we would give an undertaking to bring this Bill back to the House if doubts were subsequently cast upon the effectiveness of the technical drafting. I entirely agree that we must get this right. The Government have the advantage of extremely skilled draftsmen, and parliamentary drafting is a particularly specialised occupation. It is certainly my impression, and that of my right hon. and learned Friend who is expert in these matters, that the Bill as drafted will cover our purpose which is, as I have said, specifically to restore the law to what it was generally held to be yesterday.

§ Mr. John Mendelson (Penistone)
The right hon. Gentleman has just said that he has covered all the points, but in view of the obvious desire of the House, on all sides, to agree to what the Government are proposing, to give protection to the Army which has been ordered to go to Northern Ireland, would he cover a point he has not mentioned? Some hon. Members are still doubtful about both protection and giving additional powers to the Stormont Government. Would not the way to deal with it be for the Government to give an assurance that, as they are asking Parliament to rush through this legislation one evening, after three months or six months the Government will give the House a chance to review it?

§ Mr. Maudling
The point, simply, is that what we believe we are doing, through the Bill, is to restore the law to the position it was believed to be in before doubt was cast upon it in the 1425 Divisional Court today. If it is subsequently shown that our legislation is defective, we shall have to listen to the voice of the House in putting it right. But I am confident that what we are putting before the House will do this.

§ Mr. Clinton Davis
May I raise one point about Regulation 38(1)? The Home Secretary will be familiar, of course, with the second submission made on behalf of the appellants. If that submission were capable of being upheld and it was not a point upon which the court adjudicated, what would be the effect of this on Her Majesty's Forces?

§ Mr. Maudling
The Bill deals with what the court actually held. We have taken the decision of the court on the operative part of the proceedings and we are therefore dealing with what the court has held. What might happen under other circumstances is another matter, but this Bill is designed to deal with the situation which is arising on the judgment of the Divisional Court.

§ Mr. McMaster
Would my right hon. Friend clarify one point? Am I right in thinking that this Bill relates to the powers of soldiers to stop and search cars and to search premises? My right hon. Friend stated a few minutes ago that at the moment the soldiers are not carrying out their functions as they would if the Divisional Court had not taken its decision. I presume the soldiers are patrolling in order to help maintain peace. If they are shot at tonight from a building by snipers, as they are every night, would they have the right under their common law powers, to enter that building to try to find the sniper?

§ Mr. Maudling
They have their normal common law powers which all of us possess to apprehend anyone who is committing a crime But until Parliament has decided that they may, they must not exercise their powers under the Special Powers Act upon which doubt has been cast.
I welcome the tone of the debate. It is a considerable thing to put a platter of this character to the House of Commons at such short notice, and it is generally recognised on both sides of the House that, difficult as it is, we owe a duty to the troops in Northern Ireland who are carrying out their tasks so 1426 gallantly to see that they have the indemnity to which they are entitled and the powers they need.