§ Order for Second Reading read.
§ 4.3 p.m.
§ The Secretary of State for Northern Ireland (Mr. William Whitelaw)
I beg to move, That the Bill be now read a Second time.
It may help the House if I explain the Government's reasons for bringing forward the Bill and the reasons for the main provisions in it. My right hon. and learned Friend the Attorney-General will speak at the end of the debate to deal with the detailed questions of law which may be raised on particular provisions. I should like to take this opportunity, however, to pay tribute to him for his efforts over the last 12 months. He has had to shoulder a very large additional responsibility because of direct rule. He has also visited Northern Ireland almost every week—in itself a major commitment which has meant considerable personal sacrifices. As a legal adviser he has been of particular help to me, and I am grateful to him.
The onus must be on Her Majesty's Government to prove to the House why the special legal provisions in the Bill are necessary in the current situation in Northern Ireland. We here have a clear responsibility to the vast majority of people in Northern Ireland and for the security forces who are protecting them.
Terrorism still constitutes a major threat to peace and order in Northern Ireland; a threat which, if it is allowed to go unchecked, will jeopardise all efforts to bring about peaceful political progress. The Government made it clear in the White Paper which was debated on 28th and 29th March that there is no purpose to which it ismore firmly committed than the restoration of the rule of law in Northern Ireland, and whatever means are necessary to that end will be made available".We cannot allow a small number of vicious killers to dictate to the United Kingdom Government and the people of Northern Ireland and prevent a return to peace and normality. But we must recognise, and we cannot shirk this responsibility, that appropriate powers 276 must be given to the security forces, and that the administration of justice must be effective.
No one can say that we are not using the normal processes of law to the maximum extent possible. The total number of people charged this year is already 478, bringing the total since "Operation Motorman" to more than a thousand. No fewer than 48 people were charged with serious crimes in the first 11 days of this month.
We will continue to bring suspected persons before the courts wherever possible, and I can assure the House that the special provisions for detention in this Bill, if agreed to by Parliament, will be used only in cases where the normal legal procedures are clearly inadequate. Circumstances in Northern Ireland, however, have been such that the normal processes of the law are not wholly effective in dealing with terrorism, largely due to the use of intimidation. The Government therefore appointed a Commission under the chairmanship of Lord Diplock to consider whether changes could be made in the administration of justice in order to deal more effectively with terrorism without using internment under the Special Powers Act.
I pay tribute to Lord Diplock and his colleagues, Professor Cross, Mr. George Woodcock and Sir Kenneth Younger, who studied this problem so carefully and so expeditiously.
Because of the desirability of removing internment by the Executive from the statute book, the Detention of Terrorists (Northern Ireland) Order 1972 was laid before Parliament as an interim measure until the Commission under Lord Diplock had reported. When the Commission reported it recommended changes in the administration of justice, but came to the conclusion that an extra-judicial process would still be necessary to deal with terrorists for as long as intimidation—and the fear of it— prevented witnesses from giving evidence against terrorists. The Government have accepted the recommendations of the Commission, and, with minor amendments, they are incorporated in the Bill.
These changes in criminal procedures, while not removing fundamental safeguards, should enable some terrorists who might otherwise have to be dealt with 277 through the detention procedures to be dealt with through the courts. In view of the Commission's conclusion that an extra-judicial process would continue to be necessary, the Government have decided that the provisions of the Detention of Terrorists Order should continue.
We have recognised, however, the unsatisfactory nature of using an Order-in-Council procedure for such an important matter and have, therefore, proposed the repeal of the order and the re-enactment of its provisions in the Bill.
It was not only the internment provisions of the Special Powers Acts that gave concern, and the Government announced last year that all the provisions would be reviewed. This pledge has been kept, and the main feature of the review has been whether the provisions of those Acts, and the regulations made under them, were necessary to combat terrorism. The Bill contains the results of the review. If passed by Parliament, the Special Powers Acts will be repealed in their entirety and many of their provisions will disappear. The powers which will be retained are those which the Government consider absolutely essential in existing circumstances. They are not reproduced in the same general form in which they appear in the Special Powers Act, but have been drafted to meet the specific needs of the security situation. The House will make its own judgment about those needs.
§ Mr. Kevin McNamara (Kingston upon Hull, North) rose—
§ Mr. Whitelaw
I have a great deal to say; I want to explain in considerable detail what we are seeking to do because I recognise the importance of these provisions.
§ Mr. McNamara
I am most grateful to the right hon. Gentleman for giving way, and I promise him that, whatever the provocation, this will be the only interruption. While he is dealing with the special powers Acts, will he confirm that, although he has generally repealed the Acts, all the powers that were open to the Minister for Home Affairs under the Acts still exist in embryo form in Clause 23(1) of the Bill, and that, although he has done away with them in detail, the general power to acquire those powers still remains with the Bill?
§ Mr. Whitelaw
My right hon. and learned Friend will reply in detail to that question, but perhaps I should explain that we have removed those powers which we do not think would be necessary.
It would be a grave responsibility to commit the security forces to their appallingly difficult duties in Northern Ireland and then refuse to give them the powers needed to carry out those duties. I hope that these provisions of the Bill will be looked at in that light. It is the Government's intention that none of the provisions of the Bill, if it is passed, should continue in force a moment longer than it is needed. This is an important point for the hon. Member for Kingston-upon-Hull, North (Mr. McNamara) in particular to recognise.
The Bill therefore provides that none of the main provisions should last for more than a year without an order being made which would have to be approved by Parliament. I believe such a procedure to be an assurance in itself that, given a cessation of violence for political ends in Northern Ireland, the Government will be only too glad to see these provisions brought to an end.
After only a year from the passing of the Bill the Government would have to consider whether any part of it should stay in force. It would be a welcome day for the people of Northern Ireland if by the end of that year no need for these provisions existed. But let the men of violence equally be under no illusion; Her Majesty's Government will certainly seek to renew the powers and use them without fear or favour to anyone if violence and intimidation continue.
I should like to make one other general point. It has been argued that detention could be ended if the ordinary criminal procedures were changed even more radically than was recommended by the Diplock Commission. The Commission itself considered this problem. Its conclusion was that it would be far too dangerous to alter the administration of justice by removing safeguards which it considered fundamental to the criminal process in normal times. Its reason was that the reputation of the courts, and trust in them, would suffer and might not recover.
279 The Government accept that conclusion. Of course, it is necessary to build into any extra-judicial system as many safeguards of a judicial kind as is practicable, and that is what we have done in the detention procedures which are confirmed in this Bill. Indeed, the Dip-lock Commission agreed that just results can be obtained by extra-judicial processes, but, for the reasons I have already given, the Commission rejected their use in an ordinary court of criminal law.
Let me emphasise again that the procedures for detention are quite different from internment. No one may now be detained for more than 28 days without his case being referred for adjudication to an independent, legally-qualified commissioner who must inquire into any case referred to him to see whether the person has been concerned in terrorism, and, if so, whether his detention is necessary for the protection of the public. If the person is detained by order of a commissioner he has a right of appeal to an independent tribunal.
A person appearing before a commissioner is given in advance a statement of the terrorist activities in which he is alleged to have engaged, and may give evidence and be legally represented. Where these procedures contain departures from the normal judicial process these are necessary because, as the Commission reported, witnesses will not give evidence in the ordinary courts. The procedures contain all possible safeguards against injustice.
The Bill proposes furthermore a new safeguard. When the Detention of Terrorists Order was drafted, it was not thought appropriate to include a mandatory review provision for persons detained as the order was an interim measure pending the findings of the Diplock Commission. Now that the Commission has found such a procedure to continue to be necessary, it is only reasonable that a mandatory review be included. Accordingly, the Bill provides that once a person has been ordered by a commissioner to be detained his case will automatically be referred back to the commissioner after one year and then at intervals of six months, as necessary, so that the commissioner can decide whether his continued detention is justified.
280 I should like to take this opportunity to pay tribute to the tireless efforts of the commissioners themselves as well as to the members of the Appeal Tribunal, who are operating these procedures in the most trying and difficult circumstances. Of the 451 people brought before them by 12th April—most of whom had been detained under the previous procedures—106 have been released as a result of their decisions. A further five have been released after appealing to the tribunal. These figures prove conclusively that the commissioners are not a rubber stamp for executive decisions. Under internment a man could be committed to indefinite denial of freedom by a signature of a minister: under the new procedure this cannot happen. A Minister can only sign an Interim Custody Order; the case for detention has to be tested before the commissioners and if desired an appeal to the Detention Appeal Tribunal. Although I have not interned anyone myself and indeed had by the autumn released 561 internees, I realised at first hand the political pressures and dangers inherent in internment, as indeed did the Ulster Unionist Party, whose paper, "Towards the Future". recommended a change in procedure. Of course, the special procedures under the Detention of Terrorists Order can be criticised judicially; but they are not a mere substitute for internment without trial. They are completely different for the reasons I have given and provide substantial safeguards.
I have tried to explain the broad outline of the Bill. I must now turn to detail. Part I of the Bill deals with the changes in the administration of justice recommended by the Diplock Commission. All of these changes relate to certain offences commonly committed by terrorists and called in the Bill "scheduled offences". They are listed in Schedule 4. The schedule includes fewer offences than recommended by the Diplock Commission in the Appendix to its report but is, I believe, sufficient in order to deal with serious acts of terrorism. For some of the offences it is provided that a certificate may be given to the effect that a particular case should not be treated as a scheduled offence. This is to enable crimes regarded as not connected with the emergency to be singled out and dealt with 281 in the ordinary way. Provision for this is contained in Notes 1 and 2 at the end of Part I of Schedule 4.
I must inform the House straight away that the references here to the Director of Public Prosecutions as being responsible for issuing the certificates is an error which occurred in the printing of the Bill. The intention is that my right hon. and learned Friend the Attorney-General should be responsible for giving these certificates, not the Director of Public Prosecutions. In a field as sensitive as this, the responsibility ought to rest on the Attorney-General. He is directly responsible and answerable to Parliament for his actions, and it is right that he should be personally responsible for deciding matters of this kind. An appropriate amendment will be moved at a later stage.
Taking the changes in the administration of justice in the order in which they appear in the Bill, the first is that trials of scheduled offences on indictment should be by a judge sitting alone, without a jury. Trial by jury is highly valued in this country, and the Government needed very strong reasons for accepting that it should be even temporarily set aside. It is not with pleasure that we have concluded that those reasons are convincingly set out in Chapter 5 of the Diplock Report.
We simply cannot risk the widespread acquittal of people in Northern Ireland, from whatever faction, who ought on a judicial view of the evidence to have been convicted. Through fear and intimidation, this is a risk, and we must act accordingly.
§ Sir Elwyn Jones (West Ham, South)
Is the Secretary of State able to give the House the outcome of the 478 cases which have been charged? Can he give us a figure of the number of acquittals and the extent to which it is thought by the Government that a proportion of those acquittals was plainly perverse? That is important factual material affecting our minds on some of these provisions.
§ Mr. Whitelaw
I accept what the right hon. and learned Gentleman says. My right hon. and learned Friend the Attorney-General will do his best to answer the question. Equally, one has to accept that it may not always be the past 282 that is important but rather consideration of what might happen in the future. One has to look at both aspects, and my right hon. and learned Friend will deal with that.
§ Rev. Ian Paisley (Antrim, North) rose—
§ Rev. Ian Paisley
I appreciate that, but, as the Attorney-General will be replying at the end, we shall not have the opportunity of considering in this debate matters that might help us in our discussion of the Bill. Has there been definite evidence of juries having brought in perverse verdicts on the facts given to them in the courts? Can the right hon. Gentleman give us any help on that?
§ Mr. Whitelaw
I always treat very delicately any legal areas, but it would be right for me to say that some of the verdicts given have been rather hard to understand. I do not think that I should go further than that.
The main effect of the change which is made in Clause 1 is that the judge, and not the jury, will be responsible for the verdict. Existing rights of appeal—and this is important—are unaffected.
The second change is to put restrictions on the granting of bail to people charged with scheduled offences. The Diplock Commission found that bail was granted much more freely and indiscriminately in Northern Ireland than it was in England and Wales, for reasons which were unrealistic during the emergency.
When intimidation is rife and the security forces are fully stretched, it is important that people charged with serious crime should, as a general rule, be kept in secure conditions until they have been tried. Clause 2, therefore, prevents bail being granted except by a judge of the High Court, and then only if he is satisfied that the accused will comply with the conditions of bail, will not interfere with witnesses and will not commit offences. In addition, for the more serious scheduled offences the judge will be able to grant bail only if the applicant also shows either that refusal to grant it would cause him exceptional hardship or that he has been in custody for more than 283 a fixed period without being tried or committed for trial. I will not disguise from the House that these are undoubtedly severe restrictions in relation to the limited number of offences to which they apply. The Diplock Commission was in no doubt that these measures were justified at the present time.
Clause 3 is not based on a recommendation of the Diplock Report but stems from it. It provides that the trials of scheduled offences on indictment should be in Belfast. This is desirable in the interests of security, and does not prejudice any aspect of the trial. To minimise delays in hearing cases, the clause also enables the Lord Chief Justice of Northern Ireland to call upon county court judges to try cases involving scheduled offences at the Belfast City Commission.
The Diplock Commission made two important recommendations about the admissibility of statements as evidence in trials of terrorists.
The first is concerned with statements made by witnesses, and this is dealt with in Clause 4. The proposal is that a statement made in the presence of the police should in certain circumstances be admissible at the trial of a scheduled offence in the absence of the witness. The circumstances are that the witness is dead or medically unfit to attend; or that he is outside Northern Ireland and it would be impracticable to secure his attendance; or that he cannot be found.
The other recommendation made by the Commission about the admissibility of evidence concerns confessions and is dealt with by Clause 5. This provides that a confession made to the police shall be admissible evidence at the trial of a scheduled offence unless the person who made it was subjected to torture or inhumane or degrading treatment. Some hon. Members may feel anxiety about the possible effects of this clause. Let me say immediately that the existing rules for police practice and procedure will not in any way be relaxed. The purpose of the clause is to ensure that the evidence which has been perfectly fairly and acceptably obtained should not be excluded from a trial for technical reasons. These technical reasons are fully explained in paragraphs 73 to 92 of the Diplock Report, which merit close study.
284 The effect of Clause 6 is to change the onus of proof with regard to possession of arms or explosives where a person is charged with an offence under the statutes listed in the clause. The clause is based on the recommendation of the Diplock Commission, dealt with in paragraphs 61 to 72 of its report.
My right hon. and learned Friend the Attorney-General will, if necessary, deal more fully with Clauses 4, 5 and 6 in winding up the debate.
The rest of Part I deals with the Diplock Commission's recommendations as to the treatment of young offenders. Many right hon. and hon. Members will have found Chapter 9 the saddest part of the Commission's report. Unfortunately, it is all too true that young people under 17 play a serious part in terrorism, and it is essential that the courts should have powers to deal with them appropriately.
At present, young people—that is, people over 14 and under 17 years of age —may be given a fixed custodial sentence of any length if they are convicted of an offence carrying a maximum penalty for an adult of 14 years' imprisonment or more. Clause 7 will extend this power to scheduled offences normally punishable by five years' imprisonment or more. The Diplock Commission would have gone further but the Government are satisfied that the clause goes far enough. The clause also increases the maximum period for which a young person can be sent to a remand home from one month to six months if the young person has been convicted of a scheduled offence. As I shall mention later, there will be no fixed minimum penalties for any offence.
The Commission recommended the setting up of a secure unit to deal with young offenders. It assumed that this would take the form of a remand home. In fact, I have proposed the establishment of a new institution, part training school and part remand home, which will have secure conditions and will cater for people of all denominations.
I am glad to say that representatives of all denominations have agreed to cooperate in the management of such a school. I am at present awaiting the report of the inspector who has held a public inquiry into a proposed site. As a consequence of this new school being set up, Clause 8 amends the existing 285 Northern Ireland legislation transferring from the courts to the Government responsibility for allocating offenders to training schools. This will enable the offender to be allocated to the most appropriate school at any time.
The clause also enables rules to be made governing the temporary release of, and remission for good conduct of, people sentenced to a remand home. The power is necessary now that people may be sent to a remand home for up to six months. This clause is designed to be permanent, and is not, therefore, subject to the renewal procedure.
The rest of the Bill is a consequence of the review of the Special Powers Act. With the repeal of that Act, it becomes necessary to create a power of arrest linked with the detention procedures. Detention orders may be made in respect of "terrorists"; the Bill, therefore, gives the police power to arrest people suspected of "terrorism". The Bill also gives the police a power to arrest people suspected of scheduled offences or offences under the Bill. It remains the Government's intention that whenever possible people should be dealt with under the criminal procedures rather than those which may lead to detention. The two powers together are a good deal narrower in scope that the existing powers in the Special Powers Act but are, I believe, adequate.
The Diplock Commission recommended that the Army should have one simple power of arrest. The reasons are set out in Chapter 6 of its report. Clause 11 is based on its recommendations and would allow a member of Her Majesty's Forces on duty to arrest without warrant any person whom he suspects of committing, having committed or being about to commit an offence and detain him for up to four hours. If, having so arrested a person, the Army considers that its suspicions are justified, it will have to call a police constable to re-arrest the person under an appropriate power within four hours. Otherwise the person must be released.
Powers of entry and search in the Bill are closely limited as to their purposes. These are: to effect arrest, in Clauses 9, 10 and 11; to search for arms and explosives, in Clauses 12 and 13; and to search for people unlawfully detained, 286 in Clause 14. The existing powers in the Special Powers Act allow search for much wider purposes. Most of the powers in the Bill are exerciseable only on suspicion, and, in the case of dwelling-houses, only with the authority of a senior officer. Some, however, are exerciseable without suspicion. These are: search of premises other than a dwelling-house for munitions; search of people and vehicles in public; and search of premises for kidnapped people whose lives are in danger.
There are good reasons for this. Time allows me to give only one simple example: the security forces have reason to suspect that arms are being moved by a particular route. It is only reasonable that they should search all the traffic on that route; but they cannot say that they suspect each vehicle of carrying the arms. We have tried to meet such essential practical needs while at the same time incorporating safeguards, such as the need for authority from a senior officer before a search of a dwelling-house is undertaken. I know hon. Members will want to scrutinise these powers carefully, and I hope, and my right hon. and learned Friend the Attorney-General hopes, that they will.
The Bill also makes provision, in Clause 16, for the security forces to infringe private rights in case of operational necessity; for example, to enter a garden to avoid gunfire. It also allows more substantial infringements of private rights, such as the requisitioning of property, but only under the authority of the Secretary of State. There is provision for compensation in respect of these and other infringements of private property rights in Clause 24.
Clause 18 enables organisations concerned in or encouraging terrorism to be proscribed by order of the Secretary of State, subject to the approval of Parliament. Organisations to be proscribed are in Schedule 2. When the Bill was published, it was apparent from this schedule that the Government had decided that Republican clubs should no longer be unlawful. This being so, I was asked whether I could not act quickly, under powers already available, to remove Republican clubs from the list of unlawful associations in the Special Powers Act. In the circumstances of the forthcoming elections, this seemed both 287 reasonable and sensible. Accordingly, on 11th April I made regulations under the Special Powers Act removing Republican clubs from the list of unlawful associations. The regulations come into operation today. They are made under the urgency procedure provided for in the Northern Ireland (Temporary Provisions) Act 1972, and will cease to have effect unless approved by each House of Parliament within 40 days.
§ Mr. Stanley R. McMaster (Belfast, East) rose—
§ Mr. Whitelaw
I am just coming to a very important part of my speech, but I will, of course, give way to my hon. Friend.
§ Mr. McMaster
I am very grateful to my right hon. Friend. Will he tell me what evidence there has been in recent days that the official IRA has been engaging in terrorist activity and whether he regards Republican clubs as an outlet for the official IRA?
§ Mr. Whitelaw
I think I should confine myself to saying that I have considered all the evidence I can gather about Republican clubs, and in all the circumstances I think it right not to proscribe them any longer. I have taken that decision, which has been accepted very widely. I think this was the correct decision.
I want to come to some other decisions which in themselves, as my hon. Friend will be quick to point out, are different.
I have now been asked questions particularly about the proscribing of Sinn Fein. It is important first to set out the full position as it stands. Under electoral law, anyone may stand and may put the name of a proscribed organisation on the ballot paper. But he has no immunity, and identifying himself with a proscribed organisation could lead to a prosecution either under the Special Powers Act as it stands today or, of course, subsequent to the passage of this Bill, if my right hon. and learned Friend the Attorney-General considers such a prosecution correct. At present the organisations now named in Schedule 2 are proscribed under the Special Powers Act and will remain so until this Bill is passed unless regulations are brought before this House to remove them from 288 the list of unlawful associations as was done for the Republican clubs.
Her Majesty's Government will consider carefully all the representations made on this subject in debates both yesterday and today. I must emphasise, however, that an extremely difficult and balanced judgment has to be made which does not simply concern one proscribed organisation and has implications outside elections altogether. The House must not forget the close associations which may exist between one organisation, claiming to be non-violent, and another, which openly wages a campaign of terror.
Maria Maguire, who left the Provisional IRA disillusioned last August, said in her recent book that the political respectability of the Provisional Sinn Fein was deliberately exploited by the Pro-visionals. The president, Rory O'Brady, gave radio and television interviews claiming he could not speak for the Provisionals whilst all the time being a member of the Irish Republican Army Council, the IRA's governing body, conducting the violence.
I cannot do better than to repeat again to the House the passage in the White Paper upon which any such decision must and will be based:No person or organisation can expect to be allowed to claim to be acting politically at one moment and then, given what appears a favourable opportunity, to turn to violence and subversion.As wel las repealing the Special Powers Act the Bill also does away with the Northern Ireland Acts which require fixed minimum sentences to be passed for certain offences. These provisions have not worked satisfactorily and do not help to deal with terrorism. Only one of the provisions in those Acts—a provision increasing the maximum penalty for riotous behaviour from six to 18 months' imprisonment—is retained, by Clause 21 of the Bill.
The Bill also enables the Secretary of State to make supplementary regulations for the preservation of the peace and the maintenance of order. This is quite different from the power in the Special Powers Act, which left practically all the substantive provisions for arrest, search, detention, and so on, to be dealt with in regulations. Regulations needed at present are in Schedule 3. They are 289 "regulatory" in the true sense. Any new regulations will be subject to affirmative resolution by this Parliament.
The vote on the Ten-Minute Rule Bill introduced last week by my hon. Friend the Member for Glasgow, Cathcart (Mr. Edward Taylor) has now raised an issue which Her Majesty's Government believes the House should consider in the context of this Bill. I should remind the House that this legislation was designed simply to implement the recommendations of Lord Diplock's Commission and to repeal various parts of the Special Powers Act. But there is, as the House knows, a provision in another Act, namely the Criminal Justice Act (Northern Ireland) 1966, which retains a mandatory sentence of capital punishment for the murder of any constable on duty or person in the service of the Crown or anyone assisting such persons in the maintenance of law and order and any murder done in the course or furtherance of any seditious conspiracy.
Although this was an Act quite distinct from the Special Powers Act and no reference to the provision was made in Lord Diplock's report, the issue does come to this House in new circumstances because of the legislative and administrative changes in Northern Ireland since the Northern Ireland (Temporary Provisions) Act 1972 and the wider responsibilities here in Westminster and Whitehall.
Furthermore, if the House passes legislation to give effect to the recently-published White Paper, the Government will remain responsible to this House for matters of law and order for the time being. Her Majesty's Government recognise that the House will wish to take into account in reaching a decision on this particular question considerations somewhat wider than the straight issue of capital punishment itself. There is the question of the relevance of capital punishment in terrorist campaigns.
This House also has to answer whether, having so recently declared itself decisively once again in favour of the abolition of capital punishment for murder, it wishes to retain it specifically in a part of the United Kingdom where it has the responsibility. In order that the House may be given an opportunity to decide on these issues, Her Majesty's Government are tabling a new clause abolishing capita! sentences under the Criminal 290 Justice Act (Northern Ireland) 1966. I understand that my right hon. Friend the Leader of the House will arrange for this new clause to be committed to a Committee of the whole House and to provide time for it on that basis. I also understand that my right hon. Friend the Chief Whip will have a free vote on this side of the House when the clause is debated, as has always been the custom on matters of capital punishment. I will reserve any further comment until the House comes to debate the matter in more detail.
The Bill contains some features unpalatable to a democratic society. Her Majesty's Government do not disguise the fact that it imposes serious limitations on the traditional liberty of the subject. But those who pursue their aims by violent means are not interested in democracy or freedom. And while the Bill is urgent and essential, it is not the whole picture. The other side is the Charter of Human Rights which was outlined in the White Paper and explained in some detail by my hon. Friend, the Minister of State in his closing speech in the White Paper debate. These comprehensive and complementary provisions for the Charter of Human Rights will, of course, be permanent and will be contained in the constitutional Bill and in the discrimination in employment Bill.
The right hon. Gentleman the Leader of the Opposition asked in the course of the debate on the White Paper that we should, with the present Bill, publish the text of the human rights provisions. That has not proved possible. But the constitutional Bill containing some of the human rights provisions will, as I said yesterday, be introduced well before the elections and the discrimination in employment Bill will be introduced as soon as possible thereafter. These are very important factors on the other side of the problem. It is on that basis and on that understanding that I ask the House to approve the Bill which is before it today.
§ 4.45 p.m.
§ Mr. Merlyn Rees (Leeds, South)
When the recent White Paper proposals were before the House I said on the first day of the debate on behalf of the Opposition:On principle therefore, we support the White Paper."—[OFFICIAL REPORT, 28th March 1973 Vol. 853, c. 1332.]291 On the following day my right hon. Friend the Leader of the Opposition said that the Government had the right to ask for the backing of the House.
This is still the case. We support the White Paper and, in the context of today, the ending of the Special Powers Act; we also support the Charter of Human Rights and the control by Parliament of emergency legislation. I also said on that occasion that we should examine critically legislation stemming from the White Paper and I now stress that we shall certainly carry out that examination of the present Bill.
It is always the duty of the House to scrutinise legislation, but when considering legislation of this type there is an even greater duty upon hon. Members in all parts of the House. We mark out for criticism countries in Eastern Europe, as well as countries such as South Africa, Portugal, Rhodesia because of their denial of human freedom and the rule of law. By this legislation the Government are seeking to alter the normal process of the judiciary, and procedures such as detention need to be carefully examined and scrutinised in Committee— and this we shall do. We have grave reservations about many of the clauses and schedules, and the quite proper length of time which the Secretary of State has taken to deal with the full meaning of the clauses indicates that he and the Government realise the full seriousness of the steps which they are taking.
If we are to look in great detail at these provisions we must face up to the peculiar situation in Northern Ireland— a situation involving bombing and killing. This year already 94 people have been killed—one might say equivalent to a plane load. There have been 772 persons killed since the beginning of the emergency. In recent weeks five tons of arms were found off the Irish coast and there is much more that is not reported. Hon. Members in all parts of the House who have visited Northern Ireland in the Lower Falls, Andersontown, Shankhill, the Ardoyne, the Forkhill Crossing on the border, or who have visited the hospitals there will know that the situation on law and order in Northern Ireland is a most unusual one. We do not ignore 292 that situation in the criticisms and reservation which we have about many of these provisions. We know that there are private armies under military command and we have to face up to that fact.
The other unusual feature in terms of world opinion is that the situation in Northern Ireland is not the classical colonial situation. We must remember that in the South there is an elected Government with an Opposition party which talks only of changes in Ireland being brought about by consent. It was the Irish Government who picked up the German vessel, and on Friday last the elected TD and Minister of Justice in the South made it clear that the new Government would be tough with the IRA. The Provisional IRA was not acting on behalf of the people of the South, as was shown by the ballot box results.
The Government of the United Kingdom, like the Government of Northern Ireland, have a duty to deal with those who shoot and kill, and we are certainly not arguing the contrary. The Government have the right to take extraordinary measures given the situation in Northern Ireland, but we shall still look very critically at many of the clauses in this Bill. However, because of the peculiar situation in Northern Ireland, my advice to this side of the House is that we should not deny the Government the Second Reading of this Bill, although we have grave criticisms and doubts which we shall express on Second Reading, in Committee and on Report.
The first point I bring to the notice of the House is that on which the right hon. Gentleman finished—the charter of human rights. I remind the House of a letter which I quoted on 11th December, as reported in columns 94 and 95, and which I had written to the Social Democratic and Labour Party after they had come over here to meet the Leader of the Opposition and myself. I confirmed our opposition to the Special Powers Act. I suggested a commission to consider this in the context of a Bill of Rights. I also said that this commission would consider the question of the maintenance of the rule of law in circumstances such as those that have prevailed in Northern Ireland in recent years—in other words, that it is the duty of the Government to deal with violence.
293 In the event—because I put these views more generally and publicly than that in the autumn of last year—the Commission which the Government set up did not come out in that way. In my view the Diplock Commission was given too narrow terms of reference.
I remind the House of my letter so that I can recall a long-held view that the replacement of the Special Powers Act can only be considered in the context of a Bill of Rights. The right hon. Gentleman has explained why we have not got what he has chosen to call a charter of human rights. What we have, in Part 4, paragraph 91, of the White Paper is certain basic standards, and I notice that one of them is:the right to protection under the law, so that freedom is not taken away or diminished by violence, oppression or intimidation by others".There is a reminder in paragraphs 95 and 96 that the principal protection is that afforded by common and statute law and by our democratic tradition. It is today, in Committee, on Report and on Third Reading that we shall be exercising our democratic tradition in questioning the executive about the exercise of its powers. The lack of legislative proposals on a Bill of Rights, a charter of human rights, not only makes is difficult to do our job today despite the detailed explanation in the context of a winding-up speech that was made by the Minister of State, but also makes it even more necessary for us to look critically at the Bill.
A major point to which the Secretary of State referred was control by Parliament. I would remind the Secretary of State that a state of emergency in this country, when the Home Secretary comes to the bar of the House, lasts only 28 days, and the Government have to renew within that period. One of the points of which we approved in the White Paper was the ending of the Special Powers Act and its replacement by legislation accountable to Parliament.
In Clause 29 it is said that the most important provisions will expire after one year unless there is parliamentary approval. In our view one year is too long. I suggest six months. It may even be, if we can consider this in greater detail, that it should be shorter, but it is not too much that the Secretary of State of the day should come twice 294 a year to the House to justify his stewardship, and we shall propose this in Committee.
I now come to the main clauses of the Bill, which stem from the Diplock Report. I have criticised the narrowness of the terms of reference given to the Diplock Commission, but the report is extremely valuable to us today. I must say, as someone who learned the hard way, as others did—that visits to Northern Ireland and talking to a wide variety of people are the way to educate oneself —that I was surprised to find that only two visits were made to Northern Ireland, and those by only one member of the Commission.
We are very critical of some of the clauses and we shall seek to alter them, but there is no point, in a debate of this kind, in repetition of the argument from this side of the House. My right hon. and learned Friend will be winding up from this side tonight if he catches your eye, Mr. Deputy Speaker, and, with his greater experience, he will go into this matter in detail. But I should like to indicate that on this side of the House we have our doubts.
On Clause 1, with regard to the replacement of the jury system, we shall be proposing changes. As I said, my right hon. and learned Friend will go into them in detail, but it would be most valuable for us to have more information on this matter. I get letters from all sorts and types of people in Northern Ireland. I have had one recently from a Catholic priest saying that it is impossible to get a just decision from the packed juries of Belfast, proving the point that the Secretary of State made. I think it was the same letter that went on to describe the most curious way by which juries are picked in Northern Ireland, as if those responsible had set out to pick sectarian juries.
Furthermore, looking at the brief sent to many hon. Members by the National Council for Civil Liberties, we see that they put forward the view, which I believe is very widely held in the legal profession, in favour of the maintenance of the jury system. In any event, the fact that there will be only one judge under the Government's proposal we regard as not enough of a safeguard, and we shall be making proposals in that connection.
295 On Clause 2, with regard to bail, we regard the period of 90 days as too long. In our view, the fundamental principle that a man is innocent until he is proved guilty cannot lightly be passed over.
Clause 4, which the right hon. Gentleman mentioned, with regard to the ad-missibility of written statements in evidence, is vaguely drawn up and the qualificationunfit by reason of his … mental conditionsurely casts doubts on the condition of the person making the statement when it was originally made. On the question of written evidence being admissible unless the defendant proves that it was obtained as a result of torture or inhuman or degrading treatment, in view of all that we heard last year and the year before, safeguards are necessary here and as it is the clause certainly is not good enough.
Clause 6 and the onus of proof in reverse, as it were, raises an aspect which we are sure the House should look at very carefully, and we shall propose changes there.
In a general vein, we accept—we cannot do otherwise—the problem of young people in Northern Ireland. One of the things that has affected public opinion in this country more than anything else has been seeing young children hurling bricks at British troops. I constantly have letters about this. Nobody can ignore the fact that on the day of the general strike—if that is the correct name for it—some weeks ago it was the young people who stormed—if that is the right word—into a school for maladjusted children.
Such things as this force us to realise that there is a problem of young people, of Tartan gangs, for instance, in the constituency of the hon. Member for Belfast, East (Mr. McMaster). There ought to be a searching investigation into the problem of young people before the proposals in the Bill are agreed. These problems may be similar in essence to the problems of young people all over the United Kingdom, indeed all over the western world, but heaven only knows that they show themselves in a very virulent way in Northern Ireland.
Then, although no one underestimates the difficult problem of the security forces, those parts of the Bill which refer to 296 powers of arrest also require investigation in depth, especially the need for extra powers for the Armed Forces. We understand the need in terms of vehicle search, going into gardens, and so on. But does the Army need general powers of arrest? Is not it better to limit them to scheduled offences? In that respect I notice in Clause 13 that extraordinary powers seem to be given to inspectors appointed under Section 53 of the Explosives Act. Any such inspector may stop any person in a public place and search him. The proposal to give such a power to an inspector appointed under that Act which in this country is operated under the aegis of the Home Office needs justification.
With regard to proscribed organisations —and this is the third or fourth time that the subject has been discussed in this House—we note and support the fact that Republican clubs are de-proscribed under the Special Powers Act. In terms of what the right hon. Gentleman said today, I presume that the order doing this comes under the urgency provisions of the temporary provisions of last year. I presume that we shall have an order on the Floor of the House under the 1½hour procedure. However I ask that interrogatively because I only just caught what the right hon. Gentleman said.
We accept paragraph 94 of the White Paper. No person or organisation can expect to be allowed to claim to act politically at one moment and then, given a favourable opportunity, to turn to violence and subversion. To be a democrat means being a democrat, and we accept that. We only repeat our desire for Sinn Fein to be able to stand in the elections, not just in the context of yesterday's electoral Bill but in the wider sense which the right hon. Gentleman spelt out today. It is important that they should be able to test their strength at the polls. In the debate on the White Paper I suggested that they managed to do so in the South—in terms of their law, it is true. But is not it possible to make the Provisional Sinn Fein clubs legal in the same sense as the Republican clubs which are the political wing? Is not it possible to do that with the Sinn Fein clubs?
There are wider issues at which we shall want to look in Committee. Is it 297 necessary to have proscribed organisations in the way that Schedule 2 lays down? Is not it possible to deal with those who break the law in the way with which we are concerned on an individual basis?
I have attempted to discover what some of these proscribed organisations are. I do not attempt the Irish pronunciation of Soldiers of Ireland, except that "Fianna" obviously means a group or a party. I am told that this is the traditional title for the boys' auxiliary of the IRA and it seems that there may be two sections of it corresponding to the Officials and the Provisionals. Then there is the Society of Women. Would not it be better and is not it more sensible for such organisations to be out in the open? Is it necessary for them to be proscribed following the tradition of the past 50 years? Why not deal with them on an individual basis? If a man wants to stand for election and there is evidence against him whereby he may be brought before the courts, he should be brought before the courts. The fact that he stands for election will not prevent that.
The main aim must be for Sinn Fein and others to test their support at the polls. If their support proves to be great amongst the minority community in Northern Ireland—I personally do not believe that that would be the case, but we may be due for some surprises in the election—that is a factor that we shall have to face because it will disprove what many of us have thought to the contrary in the past year or two.
With regard to the Detention of Terrorists Order which is now put into the schedule of the Bill, the Opposition are pleased that this has happened because it gives more parliamentary accountability and it gives us the chance that we did not have the last time round for detailed investigation and for amendment.
We debated this matter in December. At that time I prayed in aid the words of the noble Lord, Lord Gardiner that this was an improvement on the existing set-up. Since then there have been the changes that the Government will put into this Bill. The Special Powers Act as such has gone, although a major aspect of it is still in this Bill. There is the charter of human rights of which we have an outline, and that gives us new standards.
298 On legal matters I always hesitate to chance my arm on a view. But from talking to a large number of people in recent months I find myself on balance coming down against special courts such as they have in the South of Ireland. I have argued that this House has the right even under the European Convention of Human Rights, for example, to intern those who shoot and kill. However I believe that detention such as the right hon. Gentleman proposes, with all the safeguards and all the improvements, in essence is still internment by the executive. It is a much "better" arrangement than before. But it is not a court of law. It is not the rule of law. It is still the exercise of executive powers of a Secretary of State. In essence it is still internment, and in that light we shall have to look at these schedules.
The proceedings before the Commission and the Appeals Tribunal are private. The Secretary of State and others put forward arguments in favour of that which one can comprehend. But the trial is in private, and the Opposition believe that private trials must be looked at very carefully. Unsworn statements are permitted. I understand that some members of the Bar in Northern Ireland are concerned about the procedures followed in the tribunal. What we require is that the provisions of these extraordinary measures be looked at in order, as the National Council for Civil Liberties puts it,… to offer the basic protection granted by the European Convention of Human Rights.That is a yardstick by which it might be measured.
We do not know the Government's legislative proposals on the charter of human rights. The yardstick for the protection of the individual is not known. The last time round when we discussed the order the Secretary of State said that the object was to put more cases before the courts. He has said again today that, given the clauses of the Bill which we shall look at in detail, surely with these procedures there will be fewer people going before the tribunal and that the aim must be to have more people going before the courts.
It so happens that I checked the figures this morning and in his speech the right 299 hon. Gentleman gave even more up-to-date figures. He said that since Motor-man there had been 1,000 arrested people charged before the courts. The fundamental aim must be to end internment under whatever name it might be known. Despite the improvement, this is still the essential object of these detention powers.
I could not argue that internment should be ended tomorrow. No one with whom I have talked believes that internment could end tomorrow morning. I have views on when the ending of internment might have been attempted before. When I say "might have", I realise fully the difficulty that faces a Secretary of State. If such an attempt proved remarkably unsuccessful, the Secretary of State and his advisers would bear the burden.
It is one of the major responsibilities of the right hon. Gentleman to seek to end internment as part of the political settlement. That is why it is vital to have free elections so as to find who it is that the people of Northern Ireland support.
Another major responsibility which is closely allied to internment is the move towards civilian policing. When I go to Northern Ireland I usually take the opportunity to visit an Army unit. Such units have the world's most impossible job. They carry out a rôle for which the Army was not trained. The aim must be to get to civilian policing as soon as possible. It is not the Army's rôle to be on the streets of Northern Ireland.
There are grave doubts which cannot be judged on the basis of or by the yardstick of the Charter of Human Rights. We cannot ignore the issue of violence in Northern Ireland and adopt an across-the-board approach to those politically motivated and to those who are reminiscent of The Godfather film, which some of us may have seen recently, who feel that they are above politics. A balance must be struck.
We cannot deny the Government their Second Reading, but we must work to improve the Bill in detail. I welcome the Secretary of State's statement that the Government will provide a one-day debate on the Floor of the House to discuss the clause that will promote the ending of the death penalty in Northern 300 Ireland. I note that the death penalty has not been applied in Northern Ireland for some years. If it is a threat to political guerrilla warfare, it has been remarkably unsuccessful. The Government propose to treat Northern Ireland as a part of the United Kingdom when considering the death penalty. We welcome the right hon. Gentleman's statement. We welcome the opportunity to have a debate. There will be a free vote on this side of the House.
The hon. Member for Mid-Ulster (Miss Devlin), when she spoke in the border debate—I re-read her speech a day or two ago—made a point with which I agree fully. She said that a country and a community cannot protect democracy by terror. However, a community cannot sit back and allow a civil war to erupt. That would be the result if steps were not taken against violence.
It may well be that it is true that democracy cannot be protected by tyranny, but democracy has the right to defend itself. Those who have been social democrats for the last 30 or 40 years will know what happens when that is not done. Democracy must defend itself, but it must do so through the rule of law. Democracy also has the right and the duty to put forward proposals for political change. That the right hon. Gentleman has done.
Will the Government provide the means for all shades of opinion to stand in the elections? Will the men of violence, from whatever part of the community, put themselves to the political test? If they do the Bill could be unnecessary. A week or two ago there appeared in the Sunday Times an editorial about the Bill which said:The approval "—that is, approval given to the Government—
can only be temporary. By August some of those 330 "—those are the people in detention—will have been behind the wire for two years. Are they to stay there, unconvicted, for as long as violence remains at an unacceptable level? It is understandable that the Government should attach great weight to the two sets of elections now forthcoming in Northern Ireland, and should wish to put in hand nothing that might upset them. When those are over, it will be high time to submit the problem to a more radical review.301 After the elections that the right hon. Gentleman has set in train, the House must turn to the matter again. The Government will have to find the right occasion on which to make the Bill unnecessary. It is not only up to the people in this part of the United Kingdom but it is up to the people of Northern Ireland. It is to those people to whom I appeal. I appeal to the moderates, to whom we have appealed over the years, and I appeal to the men of violence. We have the right to look for statesmanship from some of them. So far there has been little sign of statesmanship, but I repeat the urgent cry for peace.
The future is up to the people of Northern Ireland in the elections. It is up to those in Northern Ireland who live by the gun. They can assure a new future for Northern Ireland. Unless they do so, the fruits of political advancement will be a long time in coming.
§ 5.16 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
I welcome what the hon. Member for Leeds, South (Mr. Merlyn Rees) said. I welcome particularly his concluding remarks. I strongly agree with him about the jury system. The jury is a rare organism in this world. It is a mistake to equate it with democracy. There are many countries in the world which are regarded as thoroughly democratic which do not have the jury system and which could not have it. That is because a very homogeneous community is needed to support a jury system. Other democratic countries have tried it and it has failed because they do not have the necessary homogeneity in their community.
I fear that it is now clear in Northern Ireland, which is a deeply divided community, that there is not the necessary homogeneity to work the jury system. The hon. Member for Leeds, South instanced the difficulties. He referred to the packing of juries. That is perhaps a violent description.
§ Mr. Fletcher-Cooke
Selection, as my right hon. and learned Friend suggests, is a better word. Undoubtedly it is there and it is bound to be there in a divided community. Although we must regret the 302 temporary removal of the jury when dealing with some scheduled offences, that removal has become obviously essential.
In a small divided community not only are the religious allegiances of jurymen well known, but, unfortunately, the religious allegiances of judges are also known. The judges in Northern Ireland have shown a tremendous example in putting out of their minds all thoughts of their religious allegiances. Nevertheless, it is difficult for the community to believe that. For that reason I strongly suggest that one paragraph in the excellent Diplock Report cannot be wholly supported. The report suggests that there should be trial by one judge alone. It is not fair that one judge should be both judge and jury in a serious case. That is too big a load.
Judges in Northern Ireland must go in some fear. They are very brave men. They are completely loyal to their judicial oath. They put aside all prejudice and partial affections, and all those things which we try to put aside here every day at 2.30 p.m., for five minutes, at any rate. However, the judges are known and their allegiances and religion are known.
I would therefore urge my right hon. Friend to say that, for the more serious scheduled offences—they are all pretty serious—there should be three judges. I should not like to institutionalise the allegiances of the judges, but I imagine that with three the chances of at least one being of a different faith from the other two is very high, which in itself would give confidence. Secondly, for the judges themselves, there is not the load of responsibility and inevitably of fear if three are responsible for a finding of guilty, if three are responsible for what may be very heavy sentences in politically-charged cases, as there would be if only one man had to bear the load.
The objection to this given by Lord Diplock and his colleagues in paragraph 39 strikes me as insufficient:In criminal proceedings in particular, immediate rulings on admissibility of evidence and other matters of procedure have constantly to be made by the single judge when sitting with a jury. It would gravely inconvenience the progress of the trial and diminish the value of oral examination and cross-examination as a means of eliciting the truth if a plurality of judges had to consult together, albeit briefly, before each ruling was made.303 Of course it would hold things up a bit, but the trials will be much speedier anyhow, since there will be no jury. Therefore a little more time can surely be afforded. There is no great hold-up with three judges, even though interlocutory rulings have to be made, for example in the Court of Appeal in this country.
Frequently, some objection is made that the point under discussion has not been properly raised in the notice of appeal, or something like that. Then there is a consultation among the three judges which often takes less than two minutes and they speedily resolve such an objection. Although, I suppose, a little longer might be taken in a trial of first instance, it would be trivial compared with the important considerations which I have tried to submit—namely, the greater confidence when the decision of guilty or not guilty of a serious offencs is taken by more than one person, and, second, the greater fairness to the judge and judges themselves if the load is spread.
§ Mr. Percy Grieve (Solihull)
My hon. and learned Friend has dealt with the objections of Lord Diplock and his colleagues to trial by a college of judges or by a plurality of judges somewhat elip-tically. What has he to say about the other objections postulated in paragraph 39, that is, first, the lack of judge power to provide in this way for trial by a number of judges, and second, the statement:Our oral adversarial system of procedure is ill-adapted to the collegiate conduct of a trial of fact."?
§ Mr. Fletcher-Cooke
The second of those problems is only an aspect of what I have been saying. I do not see why three judges cannot hear cross-examination or re-examination as well as one. In so far as that remark means anything, it merely means that there would have to be a small delay in case some objection were taken to some evidence or the usual things which my hon. and learned Friend knows occur in the trials.
The other objection is more solid, namely, that there might have to be two or three more judges. That might have to happen, and it would be a certain expense, but surely we can afford that, if these considerations are as important as I believe. I doubt whether the expense of having two or three more judges for 304 Northern Ireland would be any greater than the savings in jurymen's expenses over the years. I do not know but I think that the whole thing is a matter of four figures rather than five and I cannot believe that this important matter should founder on such a consideration.
There is in the Bar of Northern Ireland a considerable catchment area of high legal talent. There would be no difficulty in my right hon. and learned Friend and the Lord Chancellor finding the necessary judge power for this purpose. I do not believe that many more would have to be appointed. If that is so, surely it would be a good thing to do. The legal profession in Northern Ireland, in very difficult times, has shown an example of unanimity, or rather of homogeneity, which is remarkable. It must have been under great strain, because its representatives themselves have different religious allegiances. They have been entirely loyal to the system that they work and they are quite capable of producing the necessary additional judge power.
For those, among other reasons, I hope that my right hon. and learned Friend will give us some indication that he might adhere to this view. I believe very strongly that it is right.
If there were any question of the capital sentence being passed, the argument would be overwhelming. It would be impossible to conceive of one judge having to find a man guilty without a jury and then passing the capital sentence. But I regard it as almost as important even if the capital sentence is abolished. Whether it will be, I do not know, and I hope that my right hon. Friends know what they are doing. I do not want to say anything more about that today.
In any event, in a decision of murder or manslaughter, for one judge alone to make such findings seems to me far too much. I hope that no considerations of economy of a few thousand pounds a year and that no considerations that the trial might be lengthened, if even by as much as two hours, will weigh in the scales against the very important protection for the judges which the amendment that I suggest would afford.
§ 5.27 p.m.
§ Miss Bernadette Devlin (Mid-Ulster)
To my mind, the most frightening aspect of this legislation lies not in the Bill itself 305 but in the reaction of organisations and the population of this country to what I consider to be the first step in the gradual erosion of their civil liberties and their traditions.
It is very strange to hear from the Government of this country, the executive, new phrases for old ideas. Suddenly, the legal traditions of this country become mere technicalities. Suddenly, it is in the interest of the law and the judicial process to talk about the protection of judges and the securing of convictions, when, in my limited understanding of the law, it is the protection of society and of the individual with which we should be concerned.
We have heard much about the Diplock Report, but Diplock is only one learned gentleman. How strange his words sound in contrast with those of Lord Justice Devlin in the 1966 revised edition of his book "Trial by Jury":Each jury is a little parliament. … I cannot see the one dying and the other surviving. The one object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will and the next to overthrow or diminish Trial by Jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that Trial by Jury is more than an instrument of justice and more than one wheel of the constitution. It is the lamp that shows that freedom lives.We have not heard from the Government, and certainly not from Lord Diplock, one concrete point of evidence to show that it is necessary for this step to be taken. We have heard of packed juries. But where is the statistical evidence? How many packed juries have there been? What is the percentage of juries which have been packed one way or the other? If there have been perverse judgments, convictions or acquittals, what is the percentage? Diplock tell us that there is no evidence of perverse convictions and that evidence of perverse acquittals is rare.
Diplock provides no evidence when he continues in another part of his report to tell us that the jury system is under strain. Where is the evidence for this? He produces none of it. Yet he and the House are quite willing to accept that a jury suddenly becomes not the traditional way of maintaining the rights and protecting the liberties of people of this country but merely a technicality of the 306 judicial process which can be dispensed with at will.
When we move on from the question of trial by jury, the entire Bill gets progressively worse. We are told that the onus of proof will be moved from the prosecution to the defendant. How is the defendant to prove his innocence when he can be condemned out of his own mouth? He can be condemned out of his own mouth by virtue of a statement made to the police or to the Army. Unless he can prove in a court of law that such a statement resulted from torture or degrading treatment, the statement will stand in court.
Those of us who remember the Compton Report have a very poor attitude on how far the police and the Army will be allowed to go before a judge will decide that a statement was elicited by means of torture or degrading or inhumane treatment. The Bill says nothing about statements made under threat of torture. It appears that a person has actually to be tortured. If he breaks down before that occurs, he has had it. The Bill says nothing of the threat or of inducement by false promises.
Bit by bit, throughout the whole of the legislation—many hon. Members will want to elucidate even more of these points—one finds that Lord Diplock and the Government are not applying themselves to the question of the rule of law. By his own admission, Lord Diplock is applying himself to the securing of more convictions. His whole report is conviction oriented. The whole Bill is conviction oriented. In one part of his report, he actually talks about the effect on the morale of troops of seeing guilty men walking the streets. Have these guilty men escaped from a place of detention? Are they people who have been convicted in the courts and have not been held or imprisoned? If they have not, by what God-given right does Lord Diplock call them "guilty men"?
Throughout the legislation we have worked on the assumption that the population of Northern Ireland is guilty. While the House and the Government claim to believe in democracy and the rule of law, the Bill is the clearest statement of my philosophy, that there is no such thing in this country, and certainly not in mine, as democratic law. 307 When we cannot secure convictions under our acceptance of the rule of law, with trial by jury, with the right of a person to be regarded as innocent until he is found guilty and to cross-examine his accusers, and when we cannot put the population of Northern Ireland behind bars by that rule of law—which is a British rule and not mine—then what of respect for British traditions and respect for democracy if we proceed to change that rule of law in order to obtain convictions? It is non-existent. The law is changed so that any paratrooper or member of the Cheshire Regiment can appear in Northern Ireland and on his evidence a man can be accused and charged with the most serious criminal offence. By the time he comes to court, our military friend will be serving in Germany and no doubt it will be inconvenient to bring him back to Northern Ireland. I find it surprising that the official policy of the Labour Party on this Second Reading is to abstain on something as important as this.
As I have said, it is the first step which is being taken to erode our rights and our freedom under the law. These are being taken away by the Bill. It is a much easier step to move legislation from Northern Ireland to the rest of the United Kingdom than to bring in this kind of legislation directly here. But let hon. Members take note that there is an anti-jury lobby in this country, and that the Bill strengthens its arm. We have seen the hanging lobby in this country. I do not see how this measure stops short of anything other than hanging. Are we to fill the gaols of Northern Ireland with people convicted under the methods laid down in this Bill and then have the cheek and audacity to send telegrams to Rhodesia?
§ 5.36 p.m.
§ Mr. Stanley R. McMaster (Belfast, East)
In welcoming the Bill, and in reply to the remarks of the hon. Member for Mid-Ulster (Miss Devlin), I should like to direct the attention of the House to the Diplock Report and to the statistics of what has been happening in Northern Ireland.
One has only to look at the figures of the assassinations, deaths and bombings 308 in Northern Ireland and to compare those figures with the number of persons who have been charged and convicted over the past three years, to draw the unavoidable conclusion that the ordinary systems of law in this country are not sufficient to match the campaign which has been deliberately mounted against the people of Northern Ireland by the subversive elements at work in Ulster.
A total of 772 people have been murdered in Northern Ireland.
§ Miss Devlin
I keep thinking about this point every time the hon. Gentleman adds to his weekly list of the dead in Northern Ireland. He continually says that 700, 770 or 775 people have been murdered in Northern Ireland. Can the hon. Gentleman tell us, knowing the total figure of dead, how many of those persons were killed by the British Armed Forces and whether he still calls it murder?
§ Mr. McMaster
If the hon. Lady wants a breakdown of the statistics, I shall give it to her. Of those who have been killed, the Army alone has lost 170 persons. In each case when a soldier has been killed —I can think of only two exceptions—the IRA has immediately put out a statement claiming responsibility for the assassination of that soldier. These deaths include some very horrible deaths. Men have been lured unarmed into a private house and made to lie down, and they have then been riddled with bullets. That is the situation with which we are dealing. That is the truth of the matter.
§ Miss Devlin
Will the hon. Gentleman respond to the question I asked? I asked how many people the Army had killed.
§ Mr. McMaster
I shall continue with my speech. Not only have 170 soldiers been killed, but 33 policemen performing their duties have been killed in Northern Ireland, and four members of the reserve police, who were ordinary people trying to serve the community. In the same way, 33 members of the Ulster Defence Regiment have been assassinated in their own homes. Of the 772 killed, 204 have been killed as a result of explosions set off in the centre of Belfast by bombs placed there deliberately in order to cause the maximum amount of destruction. I refer the House to the two relevant passages in the Diplock 309 report concerning these facts. Page 9, paragraph 17 says:In Belfast and in Londonderry the IRA terrorist groups operate from those areas which are Republican strongholds. For a long time these were 'No Go' areas into which neither the police nor the army entered. Since July 1972 the army have been able, at a cost of casualties, to maintain armed patrols in the streets, and to launch sporadic raids on premises to make arrests and to seize arms, explosives and other incriminating material. But they are not in a position to ensure the personal safety of individual citizens who reside in these areas or who have to pass regularly through them or near by. In the nature of things, it is the people who live in these areas who are most likely to have first-hand knowledge of who committed terrorist acts or planned or directed them. Yet these are the people who would put their lives, their families, their homes, at greatest risk if it were suspected by members of the terrorist organisations that they had given information to the security authorities. The fear of revenge upon 'informers' is omnipresent. It is not limited to urban areas. It extends to those who live in relative isolation in the country exposed to terrorist raids launched from across the border. It extends to all classes of society. It is not an idle or irrational fear. It is justified in fact by many well authenticated instances of intimidation, and not least by the example, familiar to all other potential witnesses, of a witness who was shot dead in his home in front of his infant child the day before he was due to give evidence on the prosecution of terrorists. Even where a terrorist crime is committed outside the more dangerous areas and in the presence of less vulnerable eyewitnesses the pervading atmosphere of fear leads them to profess their inability to identify the culprits or to give any other evidence in court which would inculpate them.I am sorry that the hon. Member for Mid-Ulster has left the Chamber because her entire speech was directed at the inference in that passage. We have seen witnesses shot in Northern Ireland. There is a witness referred to in that passage. He was an ordinary bus-driver, called Agnew, in my constituency. He made a statement to the police about a certain matter and asked the police what protection he would be given, living in an ordinary peaceful part of Belfast. The police said that they could not protect every witness and every trial.
They went away and within an hour there was a knock at his door. The little boy answered. Two men were there. They asked to speak to his father. When the father came to the door he was shot dead in front of his child. I remind the House about this although I know that some hon. Gentlemen opposite do not like 310 to hear the truth. We have all seen young girls taken by a group of these Republican terrorists in well-known Republican areas. Their heads are shaved and tar is poured over their bodies. Others have been shot in the legs and the knees by the IRA. It is its normal way of punishing people. Others have been shot in the back of the head. A sack is put over their head first because these brave men in the IRA do not like to look into the eyes of the men they assassinate in this cruel fashion.
So far 32 people have been assassinated in Northern Ireland this year. To the best of my knowledge there has been only one conviction for murder. It is in the face of such conditions that the ordinary rule of law cannot apply in Northern Ireland.
The terrorists seek to hide behind the ordinary rules of evidence. They wish to kill with impunity. They do not like the suggestions contained in this Bill. We can hear how they squeal. The squeals are even heard in this House from hon. Members opposite. The rule of law has broken down in Northern Ireland. The death roll is appalling. The damage to property runs into millions of pounds. I have seen homes in my constituency that have been burned and destroyed. I have seen businesses and factories razed to the ground. I know the people who have lost their jobs in Belfast as a result of this campaign.
I welcome the fact that the Government have said clearly that the first priority in dealing with the troubles in Northern Ireland is to deal with terrorism. Speaking as a lawyer I deplore the fact that we have to change the ordinary rules of evidence. But we must face the facts. Unless we deny that there is an IRA and that it does intimidate witnesses and operate in this terrorist fashion, unless we deny that it has created no-go areas which the police cannot enter—such areas as the Ardoyne—we have to take such measures. Only Army patrols, comprising soldiers who are drafted in for three or four months and who hardly know the area and the people living in it, can patrol such territory. This is the way the areas are policed.
How can ordinary detection take place in these conditions? How can witnesses be sure that if they give evidence they will not be attacked in their homes by terrorists? They have been attacked. How can jurymen be sure that they will 311 not be subject to intimidation? There is evidence of perverse judgments in Northern Ireland. It is because of this that the rules dealing with trial by jury and the ordinary rules of evidence entitling a man to face his accusers have had to be waived.
Conditions in Ulster since July 1969 have deteriorated sharply. All the steps that have been taken, all the measures that have been devised to meet the grievances of the terrorist organisations of the Republican Party, have led only to mounting violence and a growing death roll. I told the House that, since October 1968, 170 soldiers have been shot. It is frightening to realise that of these, 115 have died since April 1972. That is a little over a year. During that year this Parliament has been totally responsible for security in Northern Ireland.
Because of the extension of this deliberate campaign of terrorism, mounted for a political end by a Republican minority which seeks to impose its will on the majority in Ulster and even upon this House—because of this vicious and seditious threat—we must legislate in this way. The result of the terror has been to create fear. This is so in my own constituency and in the constituency of the hon. Member for Belfast, West (Mr. Fitt). He knows that people living in that area, in New Lodge Road, in Victoria Barracks, would not come forward to give evidence in any normal court of law against people whom they know to have firearms and to be engaging in terrorist activities.
The hon. Member spoke last night of the first soldier to be shot in the area, Gunner Curtis. He knows that these men and women dare not give evidence. It is more than their lives, the lives of their wives and children and the safety of their homes are worth. The effect of fear on the rules of evidence, on the minds not only of witnesses but of a jury, must be taken into account. We have a duty to protect the civil rights of the minority but we also have a duty to protect the civil rights of innocent victims. There have been 772 such people. If measures such as this had been taken three years ago, would the death roll have been so high today?
312 It is the responsibility of this House to restore law and order in Northern Ireland, to bring the shooting and killing to an end, and to arrest and convict the terrorists. If this is the way to do it, I suggest that it should be accepted by this House as part of the ordinary responsibility of Members of Parliament.
§ 5.50 p.m.
§ Mr. Arthur Davidson (Accrington)
I am as passionately concerned as is the hon. Member for Belfast, East (Mr. McMaster) to ensure that the rule of law and respect for the legal process returns in Northern Ireland. But if it is to return and to endure it is essential that those who come in contact with the legal process, the citizens of Northern Ireland as a whole, respect the fairness and im partiality of the criminal legal process. That seems self-evident. However, I fear that, far from the Bill assisting in that direction, it will put it considerably in jeopardy. I believe that it will go a long way to undoing some of the sensible, fundamental constitutional changes that were debated yesterday and embodied in the Northern Ireland Assembly Bill, and many of which were contained in the White Paper.
There should be no doubts about what the Bill seeks to do. I share the view expressed by the hon. Member for Mid-Ulster (Miss Devlin). I am astonished at the lightness with which lawyers and others have regarded the changes in the Bill. We are not tinkering around with minor evidenciary points, we are not altering some minor points of detail or technical rules of evidence. We are altering the whole fundamental criminal process in Northern Ireland for a whole range of substantial offences which, rightly, carry heavy penalties.
I should have thought that before we endorsed such a fundamental change there would be the strongest possible evidence either in the Diplock Report, which recommends the changes, or brought forward by the Secretary of State to substantiate them. I believe that the only acceptable evidence to this House would be evidence that showed that the jury system had of itself been the cause or a considerable cause of terrorist activities in Northern Ireland, that its maintenance would contribute to the continuance of terrorism, or would 313 be a considerable impediment to the containment of terrorism which all of us want. No such evidence has been brought forward today and none is even suggested in the Diplock Report. Indeed, as the hon. Member for Mid-Ulster rightly pointed out, Lord Diplock, in Chapter 5, says:It is fair to say that we have not had our attention drawn to complaints of convictions that were plainly perverse and complaints of acquittals which were plainly perverse are rare.How can that statement be used as a basis for abolishing the jury system in Northern Ireland, even if only temporarily?
§ Captain L. P. S. Orr (Down, South)
The hon. Gentleman is putting forward a persuasive argument on that point on the evidence so far, although I am fairly sure that my hon. Friend the Minister of State will be able to bring forward examples where decisions by juries have been perverse. Does he concede that it is also a reasonable argument to point to the inability to bring cases at all because of witnesses being intimidated and the obvious fact that convictions might be impossible if the jury system were continued?
§ Mr. Davidson
Any point is reasonable in the context of Northern Ireland. The hon. and gallant Gentleman is suggesting that witnesses are or might be intimidated. He may be right.
How would the abolition of the jury system lessen the prospect of witnesses being intimidated? If they are intimidated sufficiently to cause them not to want to attend a trial before a jury, they are not likely to be less or more fearful, or their feelings will not be any different, if they appear in court before a single judge. That is not a very good argument.
§ Mr. Davidson
There is no evidence of intimidation of juries. If there is substantial evidence that juries have been intimidated, that is a different matter. However, there is nothing in the Diplock Report which suggests that juries have been intimidated. Witnesses have been intimidated, and that problem will remain in many respects.
The hon. Member for Mid-Ulster quoted the excellent, ringing passage from 314 Lord Devlin which I should have liked to quote, so I will not do so. At the end of his book Lord Devlin refers to a quotation from Blackstone, which reads:inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.I am extremely worried that we should abolish something as sacred as the jury system. It may be said that we are to abolish it for only 12 months and then we shall come back to this House, but such things have a habit of remaining permanently abolished. Once a precedent is set it can be used in other parts of the country. I should hate to witness the time when a future Attorney-General— it certainly will not be the present Attorney-General or my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones)—says, "Trial by a single judge has worked reasonably well in Northern Ireland, so let us get rid of the jury system here." This is not a fantasy. It could happen.
§ Mr. John E. Maginnis (Armagh)
The hon. Gentleman is endeavouring to convince the House that the jury system is to be abolished entirely in Northern Ireland and may be abolished in this country. Is he aware that this is an Emergency Provisions Bill dealing with terrorists and that the normal jury system for ordinary crimes will still operate in Northern Ireland?
§ Mr. Davidson
I am of course aware of that. I have said that the Secretary of State has stated that it is being temporarily abolished, in the main for terrorist offences.
As lawyers, many of us have gone to countries all over the world to sit in trials as observers. Usually we have come back and made very critical reports about the legal system in those countries and the way in which fundamental civil liberties and the rights of the subject have been eroded and destroyed. I need not instance any particular countries, for the list is legion.
Over and over again, the excuse such countries give for abolishing civil liberties is that a terrorist situation exists. Over and over again we as lawyers, representing as we do the most sophisticated 315 and respected legal system in the world, have been able to say that even in the context of Northern Ireland people are brought to trial before the ordinary courts of the land and that those trials are held openly and publicly. We shall no longer be able to say that. When we sit in and observe trials in some of these countries, our position and the respect in which British law is held in those countries will be severely diminished and hampered.
The Secretary of State said that many of the clauses in the Bill are unpalatable in a democracy. He is absolutely right. He cannot say in the same breath that if those statements were obtained as a result of torture or inhuman or degrading treatment, that alters the laws of evidence in a technical sense only.
What will be considered by this single judge as a statement obtained by torture or inhuman or degrading treatment? Does this mean that in future statements obtained as a result of bribes, inducements or threats must be admissible? On any reading of the Bill, I fear that one must come to that conclusion. Does this mean that in future the police can say, "If you make a statement we shall get you bail", or, "If you make a statement you can be released", or, "If you make a statement you can see your lawyer"? That is not merely a change in technical rules. It is a complete alteration in the rules of evidence which have worked in this country for years and years. It was not even suggested by the Criminal Law Revision Committee, which suggested practically everything else, if I may say so, and which has rightly been rejected by the Bar Council and most other legal bodies in the country.
§ Mr. McMaster
The hon. Gentleman has very carefully and seriously been destroying all the suggestions put forward in the Bill.
Will he give us his suggestions to deal with the mounting campaign of terrorism that is causing so much death and destruction in Northern Ireland? How would he bring about convictions against these people?
§ Mr. Davidson
With great respect, it is not for me to suggest that. It is no excuse for someone to say, "Of course, the Bill is not perfect, but may I remind 316 people that we could introduce something far worse." That is no justification for the Bill.
I do not suggest for one moment that the same legal niceties existing in this country could possibly prevail in Northern Ireland. In the situation existing in Northern Ireland, with the violence and killings which all of us condemn, obviously the police and troops must be given some sort of emergency powers and greater power of arrest than exists in this country. But that does not mean that we can willy-nilly abolish the jury system. It does not mean that we can capriciously turn our backs on the basic protection which the law of evidence gives to people in this country.
In Committee, there will be time to go through the Bill clause by clause. Not one but every clause in the Bill—and my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees), opening the debate for the Opposition, gave objections to the clauses—has some serious and fundamental objections from the civil liberty aspect.
I speak as someone who both abhors what has taken place in Northern Ireland as much as anybody and regards the job of the troops in Northern Ireland as intolerable. None the less, even in the context of Northern Ireland I do not think we can permit enactment of the Bill.
§ 6.06 p.m.
§ Mr. Carol Mather (Esher)
The Explanatory Memorandum draws attention to the fact that the Bill results from the Diplock Report. I add my congratulations to the analysis made by that commission. This is the first opportunity we have had to discuss the report. It throws an arc light on the confrontation between a democratic government and a terrorist regime and is an object lesson for other governments who have not yet experienced this kind of trouble.
I wish to raise three matters. The first is internment, the second the treatment of young terrorists and the third the announcement about the capital penalty just made by my right hon. Friend.
The terms of reference of the Diplock Commission were that it should considermeans other than internment, of dealing with individuals involved in terrorist activities.317 But Diplock, in spite of this, is in my view the best case yet put forward for the arguments advocated for internment, at any rate in present conditions.
At that time, I supported internment. I advocated it before it happened. We should remind ourselves that it had been successful in the 1960-64 campaign. The reason we had to introduce internment— and I know Opposition Members are continually arguing against this—is that the normal course of law had broken down and that we had to find a substitute. As we read in the report, it was impossible to obtain witnesses, to rely on juries and to protect magistrates and judges. This was caused entirely through intimidation, as the Diplock report makes clear.
The report has been quoted by some of my hon. Friends but one quotation as to the fear of revenge on informers is omnificent and strikes the sharpest chord. The effect on Resident Magistrates is illustrated on page 23 of the report:Resident Magistrates sitting in the same court day after day are in the front line of danger among the judiciary. Of the four RMs who sit in Belfast, one has been shot and very seriously wounded.One cannot deny these facts which are made clear in the report. Yet in all our debates in the House on internment, Members on the other side of the House are continually denying that intimidation exists.
Schedule 1 sets out in a clear form the stages in the revised procedure for internment. I believe that the procedure contains real safeguards for the accused.
There is one disappointment to which I should like to draw attention, and that is the case of the "special category" prisoners, a class created in May 1972. These special category prisoners have used their position in a scandalous way and scandalous abuses have taken place. Prisoners have only to make a simple statement at the time they go before the court that they do not recognise it to be given a political category akin to that of a prisoner of war.
In the camps, in Crumlin Gaol and in Long Kesh they ape the Colditz Story. Escape tunnels are built. A successful escape took place through one of these tunnels, which was 40 yards long. The prisoners practise drill, weapon training and section training and a fiercesome 318 armoury of model weapons—and some more lethal weapons—ammunition, training manuals, and so on, have been seized.
I heard it said by a company officer from the battalion responsible for looking after Crumlin Gaol that inside the gaol wasa formed body of men actually training for war.Through intimidation and lack of training to deal with the situation the prison staff were "thoroughly demoralised", yet the morale of the special category prisoners "was extremely high". I hope that my right hon. Friend will give this matter some consideration.
Clauses 7 and 8 are of the utmost importance in dealing with young terrorists. One of the most tragic results of this situation is the involvement of youth. The evil of this brand of terrorism is shown by the fact that there have been mass arrests of adult terrorists, with the Provisional battalions decimated, and yet terrorism has not vanished. It has simply spread down to the youngsters. The Diplock Report mentions the use of children as a "living screen" which moves forward, drawing the troops out so that the snipers can open fire. We know that this has happened for a long time. But what has not been happening—what is quite new—is the use of 14-year-olds as snipers, in possession of guns.
When this battle is won, as it must be, we shall be left with a dreadful legacy. The way in which we deal with young offenders, particularly those under the age of 17, is of crucial importance. Chapter 9 of the Diplock Report makes terrifying reading. Of course, we were recently made aware of the involvement of youth, and I have seen it myself in the Creggan Estate, where gangs of children have gone out hunting military patrols and thrown stones at them. On Sundays they go to the camp at the top of the hill, in a band of 400 to 500, and throw stones at the camp. That is a difficult situation to deal with.
The Children and Young Persons Act (Northern Ireland) 1968 contains power to provide institutions, but we learn from the Diplock Report that none of these institutions has been built, or is available. Only two schools existed at the time of writing. They were open 319 to people under the age of 17. The schools were divided along sectarian lines. The Diplock Report makes clear, however, that the only secure alternative is prison, and we know the disadvantages of that for young offenders. The existing two schools were not secure and there was nothing to prevent young people from absconding. I am glad to hear that my right hon. Friend the Secretary of State is taking action on this aspect. We would like to hear a little more about this when my right hon. and learned Friend winds up.
My right hon. Friend gave as his reasons for the change on the capital penalty issue the Bill which my hon. Friend the Member for Glasgow, Cathcart (Mr. Edward Taylor) sought to introduce and the result of the vote on it. I hope that it did not escape my right hon. Friend's notice that about two-thirds of Conservative Members were in favour of the Bill. The Diplock Report says in chapter 3, paragraph 4, that it is not the commission's job to recommend changes in the criminal law; this would be a longer job and would need much further consideration, and it should be considered by a much broader based body. I ask my right hon. Friend why, if the change is envisaged, it is not given to a broader-based body to make a proper and thorough study. Is it right that the change should be made in an emergency Bill of this sort and not in the major constitutional Bill which, as the White Paper makes clear, and which my right hon. Friend made clear in his speech, will deal with fundamental matters of law and order?
This is not the occasion for this change, if it is envisaged. Should not the people of Northern Ireland, in their new Assembly, be given the chance to vote on this matter? The Criminal Justice Act (Northern Ireland) 1966, which is the key Act in this case, mentions the murder of "a person in service of the Crown". That could be taken to mean a police officer, a prison officer or a member of the Armed Forces. I remind the House once again of the number of murders of this category of person which have taken place since the emergency started in 1969. Up to 31st March this year, the Army had had 166 men killed; the UDR had had 34 men killed and the 320 RUC had had 38 men killed. That makes a total of 238. Is it right to remove this basic protection from the Armed Forces, the RUC, the UDR, and the prison service? No one knows the extent to which capital punishment works, or does not work, as a protection, but these people feel that it is a basic protection for them.
§ Mr. Whitelaw
I am sorry to have come in late on my hon. Friend's speech. I have said that I will reserve all my comments until we debate the clause concerned. I would not wish my hon. Friend to make any presumptions about anyone's views on the matter until we have debated the clause.
§ Mr. Mather
I thank my right hon. Friend for the intervention. I have nothing more to go upon than what my right hon. Friend announced in the House. I hope that he will read the earlier part of my speech on this point.
§ Mr. Stanley Orme (Salford, West)
Recently there was the murder of a police officer in Northern Ireland. A person was found guilty and sentenced to be hanged. He was reprieved by the Secretary of State. I do not recall the hon. Member or any of his hon. Friends raising any public objection to that reprieve. Will he explain that?
§ Mr. Mather
That was the exercise of the prerogative by my right hon. Friend. I do not believe that it is for individual hon. Members to interfere in that process. We may feel that it was not right; we may feel that it was correct. The point is that the prisoner did not know until the last minute whether or not he would suffer the death penalty. That is the deterrent.
To continue with my original train of thought, I would not have raised the question of morale had not this whole matter been raised by my right hon. Friend. It would have been quite simple to go ahead with the Bill as it exists, but the question having been raised by my right hon. Friend, I feel that I must mention the subject of the morale of the security forces. Morale is a very delicate matter. It has to be built up over a long period. We should be extremely careful not to do anything to damage it.
I believe that the question of the categories in the Criminal Justice Act, 1966, 321 covering servants of the Crown, ought to be something for which the Government accept responsibility. I do not believe it is right that the conscience of private Members—which one respects—is a proper basis for legislation of this kind. We ought also to bear in mind public opinion and the anxieties which public opinion now feels about the increase in crimes of violence, murder and, in particular, terrorism. This new dimension, this advent of terrorism, is part of the reason for the tremendously renewed interest in the question of capital punishment for terrorism which has occurred not only in Northern Ireland but over here, as we have seen at Aldershot, the Old Bailey and Whitehall.
There are demands for tougher action against terrorism, but if this free vote is successful it will be claimed that we have made it weaker. It is recognised that there is a gap between this House and public opinion, and if this free vote is carried we shall widen the gap. We know that at times there are political difficulties in using these powers, but I beg my right hon. Friend at least to keep these powers in reserve. Finally, I echo the words of the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) when he said he hoped the Government knew what they were doing.
§ 6.22 p.m.
§ Mr. Graham Tope (Sutton and Cheam)
I hope the hon. Member who has just spoken will forgive me if I do not follow his remarks to closely. I listened to them with great interest and would only say that I do not believe that depriving a man of his liberty without trial is ever justified. I am positive that in Northern Ireland the previous period when internment was in force was disastrous. Nor do I believe that capital punishment, particularly in the circumstances to which the hon. Member referred, is a deterrent—but we shall have an opportunity to debate that question more fully later.
I agree with a great deal of what was said by the hon. Member for Accrington (Mr. Arthur Davidson) and the hon. Member for Mid-Ulster (Miss Devlin). We have to consider the Bill in a wider context, and in the light of trying to create a social climate in Northern Ireland which might eventually lead to a just and lasting peace in the Province. I am sure hon. Mem- 322 bers on both sides of the House deeply regret the circumstances which have necessitated a Bill such as this coming before the House. For those of us who are concerned with questions of civil liberties it raises many issues of conscience, and there are many aspects of the Bill which are difficult, if not impossible, to accept.
I recognise that exceptional circum-stances, such as those presently prevailing in Northern Ireland, require exceptional measures. We cannot consider these measures in the light of conditions prevailing in this part of the United Kingdom. Certainly, I accept that we need exceptional measures in Northern Ireland, so we may need a Bill of this kind. Nevertheless, in view of that, I believe that we must take great care to guard against the danger of over-reacting to the situation and giving the Executive powers beyond those which are needed to deal with this difficult situation.
I welcome, as I am sure many hon. Members do, the repeal of the Special Powers Act—a step called for by the Liberal Party for many years, and by many other hon. Members. I recognise that the Bill is an improvement—perhaps a great improvement—on that Act. Nevertheless, there are many parts of it which go further than is necessary, and which make me feel very unhappy. Time prevents my going through them in detail but there are a few to which I want to make particular reference.
One is the question of proscribed organisations, referred to earlier in the debate. I recognise the difficulties inherent in dealing with the situation in Northern Ireland and the political difficulties which are faced every day by the Secretary of State in trying to make decisions on these matters. I find it difficult to see what is achieved by banning organisations. To me it seems that the activities of members of those organisations are wrong, and illegal, and it is those activities which should be proscribed. However, I accept that there may be good reasons for proscribing such bodies as the IRA and the UVF, which are organised for violence. But I feel a distinction should be drawn— difficult as it often is—between bodies which are organised for violence and those which are organised for political purposes to express political views. I recognise that 323 many may belong to both kinds. Nevertheless, I feel it is wrong to proscribe someone for the political views he holds and the political organisations he joins.
In that context, I very much hope that the Government will see their way clear to removing the barriers which effectively prevent members of Sinn Fein openly standing as candidates in the forthcoming elections, so that they can stand if they wish to do so and we can test the support, or lack of it, which their policies have amongst the people of Northern Ireland.
In his concluding speech the right hon. and learned Attorney-General may be able to refer to this. If not, the Secretary of State may be able to comment at a later date, as he said he might.
I now turn to Clause 4, relating to the admission of written statements. I have many grave misgivings about this provision. I should feel happier if statements were required to be made before a magistrate rather than a police officer. A provision should not only be fair; it must be seen to be fair. Rightly or wrongly, many people in Northern Ireland—particularly members of the minority community—do not have great confidence in the RUC or, sadly, the security forces. If this measure, about which I have very grave misgivings, is to succeed it must be seen to be fair. One step which might help would be for written statements to be made before a magistrate rather than a constable. I hope, too, that in his closing speech the Attorney-General will be able to give an indication of what he understands the words "reasonable steps" to mean, as mentioned in Clause 4(c). I am not sure what those words mean in that context.
I find Clause 5 equally objectionable. I would find it acceptable only if admissions were made before a magistrate rather than before police officers. Other hon. Members have referred to the problems of subsection (2) in relation to just what "torture" and "inhuman treatment" are, and the fact that it does not deal with threats or implied threats which might be made.
Clause 9(4) deals with finger-printing and photographing suspects. This would be seen to be fairer if it were done only by order of a magistrate rather than by order of a police officer. I also wish to 324 see a greater safeguard against the use of what is termed "reasonable force". Any action under subsection (4) should be undertaken in the presence of a solicitor or some other impartial observer, so that it may be seen to be fair.
Clause 6 deals with the possession of arms and proscribed articles. I find it totally unacceptable. It presumes that the defendant is guilty unless he can prove his innocence. That goes against the basic tenet of British law. It is wide open to abuse and to the conviction of innocent people. It is quite wrong. In many ways, it is an invitation to one side—if I may use that expression—to plant arms or proscribed articles on the other side and then denounce the people concerned, when the onus will be on those denounced to prove their innocence.
We Liberals are in favour of much stricter arms control. I do not believe that Clause 6 is the way to achieve it. The onus should be on the prosecution to prove the link between the defendant and the proscribed article—to prove that the article was not planted or was not involved by accident because the person happened to be on premises in which he was unaware that there was a machine gun hidden under the bed. The onus of proof must be on the prosecution. It should not be on the defendant to prove his innocence.
Clause 2 imposes severe restrictions on the granting of bail. I recognise that there are circumstances particular to Northern Ireland which make the situation very difficult, but I believe that the provisions of subsection (2) are quite enough and that subsection (3) goes too far.
Another aspect which concerns me is the possible interpretation of Clause 19, dealing with the collecting of information. I am sure that it is not the object of the clause, but it might be interpreted as restricting some of the freedom of the Press in Northern Ireland to conduct investigations into the activities of the security forces and the police. This could be a very retrogressive step. Here again the onus of proof should not be on the defendant, as it is in the clause as drafted.
Again, Schedule 1 provides that both the detainee and his representative may be excluded from the hearing. This goes 325 much too far. I accept, reluctantly, that there may be occasions when the detainee himself should be excluded but, again so that the process is seen to be fair, his legal representative should be allowed to be present throughout the hearing.
I am concerned, as we all are, that the Government should have the necessary powers to deal with the very difficult situation in Northern Ireland. As my right hon. Friend the Member for Devon, North (Mr. Thorpe) said recently, we feel that the Secretary of State has an exceptionally difficult job and that he has performed his duties extremely well. However, I have to make these reservations about the Bill. I shall listen with great interest to the Attorney-General, but unless he can reassure me on a number of points, some of which I have mentioned, I will find it difficult to support the Bill.
§ 6.35 p.m.
§ Mr. John E. Maginnis (Armagh)
The hon. Member for Sutton and Cheam (Mr. Tope) has a distaste for detention. Every right-thinking person in the country would say that it should be done away with, but one is living in cloud-cuckoo land if one thinks that we can get rid of it in Northern Ireland at the present time. In Chapter 4 of its Report, the Diplock Commission states, in paragraph 27:We are thus driven inescapably to the conclusion that until the current terrorism by the extremist organisations of both factions in Northern Ireland can be eradicated, there will continue to be some dangerous terrorists against whom it will not be possible to obtain convictions by any form of criminal trial which we regard as appropriate to a court of law; and these will include many of those who plan and organise terrorist acts by other members of the organisation in which they take no firsthand part themselves. We are also driven inescapably to the conclusion that so long as these remain at liberty to operate in Northern Ireland, it will not be possible to find witnesses prepared to testify against them in the criminal courts, except those serving in the army or the police, for whom effective protection can be provided.That is the background against which my right hon. Friend the Secretary of State had to introduce the Bill. I know that it was no pleasure to him.
There is an old Irish expression, "The birds are coming home to roost." The troubles of Northern Ireland are coming home to roost on the benches of this Chamber. For many years we have had sporadic terrorism. When the Northern 326 Ireland Government were in existence they were castigated right, left and centre because of the Special Powers Act, but when all else has been tried and everything has failed, we come round to this new Bill which, by any standards, will give the security authorities ample power to deal with the terrorism which now exists.
I shall be very happy when the day arrives when such measures are no longer necessary. I am sure that everyone agrees with that. But while a state of terrorism exists in Northern Ireland we have to enact measures to combat it. The hon. Member for Leeds, South (Mr. Merlyn Rees) spoke of British law being respected throughout the world. He will no doubt recall that special measures have been taken in the Republic of Ireland. Even before the latest measures were taken, there was the case, in 1957, of Gerry Lawless, who took his case to the European Court of Human Rights. It is interesting to note that on that occasion the court said:Considering, in the Judgment of the Court, that in 1957 the application of the ordinary law had proved unable to check the growing danger which threatened the Republic of Ireland; the ordinary criminal or even the Special Criminal Courts or Military Courts, could not suffice to restore peace and order; in particular the amassing of the necessary evidence to convict persons involved in the activities of the IRA and its splinter groups …That, too, is part of the background of the Bill.
When all is said and done, I hope that a large measure of support will be given to my right hon. Friend, although amendments will doubtless be moved later. We must realise that if we do not win the fight against terrorism in Northern Ireland it will have to be fought again in this country. Every right-thinking person, whatever his political beliefs, must agree that no progress can be made in any country where terrorists are in operation. The terrorists are out to destroy the rule of law and the peace and prosperity of the country in which they operate. It cannot be said that the Bill contains no deterrent. Of course there is a deterrent. If a person knows that he is likely to be caught and convicted for an offence he will think twice before he commits it. In the present situation, people commit offences knowing well that there is not 327 the slightest chance of their being challenged or caught.
I wish my right hon. Friend every success in this measure. I hope that before long the security forces will have brought the situation under control, so that the emergency powers we are passing this afternoon will no longer be necessary.
§ 6.40 p.m.
§ Mr. Gerard Fitt (Belfast, West)
It will come as no surprise to the House to hear that I am vehemently opposed to the Bill. I do not believe that it will contribute in any way to bringing peace to Northern Ireland, or to ending the violence there. Legislation of this type is counter-productive. I, and thousands of my constituents, see the Bill as replacing the existing special powers by an even more dangerous form of special powers. I can see no necessity for a Bill of this type.
From reading the Diplock Report and the Bill one gains the impression that Mr. Justice Diplock and those who sat with him had one thing only in mind—how to secure more convictions. That is understandable, but it is not wholly defensible. In its anxiety to secure more convictions the commission is taking away from innocent persons the protection which they now have under the law. The present system in Northern Ireland, with all its imperfections, is better than that which is suggested in the Bill.
I see no reason for the abolition of the jury system. As hon. Members on both sides of the House have said, the Diplock Report contains no reference to any case in which the jury brought in a perverse verdict. During the past few weeks, the Secretary of State has repeatedly said that the security forces are having unprecedented success in their attempts to arrest terrorists and bring them before the law. Why, therefore, is it necessary to abolish the system of trial by jury?
The system of trial by jury in this part of the world has taken centuries to build up. It is cherished, and it should not lightly be abandoned. Once we do away with it in Northern Ireland for scheduled offences, it will be much easier to do away with it in other parts of the United Kingdom. The precedent will have been created, and once it has been created it will be easily extended.
§ Mr. Mather
Surely the hon. Gentleman is aware that the jury system in Northern Ireland is being continued for offences other than scheduled offences?
§ Mr. Fitt
Yes, but by taking away the jury system for scheduled offences one is inserting the thin end of the wedge. If that system can be taken away for scheduled offences it can be taken away for other offences.
I am not a lawyer, and I claim no legal knowledge, but under the present system the jury listens to the evidence given against the accused person and in his summing up the judge puts that evidence impartially to the jury. If a judge makes a mistake in summing up and the accused person is found guilty, an appeal can be lodged on the ground that the judge has made a wrong assessment in his summing up and has had to put that assessment on paper. In thousands of cases, the decision of the court has been appealed against successful, because the judge has had to commit his thoughts to paper in his summing up to the jury.
If this legislation goes through no one will know what motivated the thinking of the judge. He will no longer have to explain his thoughts to anyone. All he has to say is that he is satisfied by the evidence that the accused person is guilty. There is no appeal, because the judge does not have to give reasons for finding the person guilty. He does not have to sum up for the benefit of the jury. A great deal of responsibility is thereby cast on the judge.
The hon. Member for Antrim, North (Rev. Ian Paisley) raised a valid point when he asked the Secretary of State how many verdicts had been given in respect of which there was an element of doubt in the mind of the Secretary of State that the jury was biased one way or the other.
Will the Secretary of State tell us how many people have been given bail by the courts, and how many have absconded? It would be helpful to have those figures at our disposal during the debate, so that we may refer to them.
Clause 1 is the most important clause. It takes away from an accused person the right to trial by jury. Even under the present system some strange verdicts have been handed out by the Northern Ireland courts. Yesterday afternoon, a constituent of mine was tried by a judge 329 and jury on an arms charge. After all the evidence had been heard he was found not guilty. Before he had the opportunity to leave the court after that verdict he was arrested by the Special Branch, and is now undergoing interrogation at Castlereagh. I have no doubt that he will be sent to Long Kesh. What is the use of having a court in the first place if, after 12 jurymen find a person not guilty on the evidence, that person is arrested by the Special Branch and detained at Long Kesh? Those powers of detention and internment are continued in this legislation. If the security forces cannot get the accused person one way they will certainly get him the other way.
How can the Secretary of State believe that this legislation will do anything to de-escalatc the tension in Northern Ireland? People do not understand the law. All they know is that a son, husband or brother has been acquitted by a judge and jury and is subsequently arrested and has to suffer detention in the internment camp. The Secretary of State will have to justify his proposals much more thoroughly before he can hope to satisfy our strong objections.
Clause 4 makes hearsay evidence admissible. Anyone will be able to write to the police or to the security forces and that letter will eventually get to the judge. The writer of the letter will be able to provide that evidence as an informer, but he will not appear before the court. In British law it is understood that those defending the accused have the right to cross-examine those making the charges, but here we have an entirely new concept, in which written evidence will be admissible without anyone knowing who the accuser is, or where he got his evidence.
If the courts that are to be set up under this legislation are anything like those now operating at Long Kesh, they certainly will not be able to be called courts in the ordinary sense of the term, because those now operating with commissioners are special courts. People who have appeared before them have not been able to see their accusers. The accusers have sat behind a curtain. Many eminent members of the legal profession in Northern Ireland are no longer prepared to be subjected to the indignity of searches when making cases before commissioners without knowing the identity of the 330 accusers. In a very few days, or at most a few weeks, the Attorney-General will find that strong objections are raised by members of the legal profession in Northern Ireland about this.
A restriction is to be put on judges in Northern Ireland in relation to the circumstances in which they will be permitted to grant bail. I hold no brief for judges in Northern Ireland—I do not say that they have never made mistakes and are completely infallible—but I have yet to hear why such restrictions should be placed on them. I believe the Diplock Report said that the morale of the security forces was lowered when they saw a person allowed to go about in the streets on bail. That is apparently the reason why this restriction has been written into the Bill. The security forces should be prepared to accept what everyone else is prepared to accept—that an accused man is innocent until he is proved guilty—whether or not they object to his being able to walk freely in the streets.
Clauses 9 and 10 are almost an exact repetition of the most offensive and obnoxious sections of the Special Powers Act. It is no good telling the people of Northern Ireland that the hated and oppressive Special Powers Act has gone and then embodying the exact terms of that legislation in another form. In Northern Ireland it means the same, and is as obnoxious and as undesirable.
Clause 11 deals with the Army's powers of search and arrest. I do not think anyone in the House would claim that the ordinary British soldier is a supreme diplomat, particularly in view of some of the actions which have taken place in Belfast in the past two or three weeks. If such powers are to be given to ordinary members of the security forces it should be remembered that they have absolutely no training in the use of those powers. We are told that they will be able to arrest a person on suspicion, but who is to apply a test to that member of the security forces and to ask him, "Why do you suspect this person of being engaged in the commission of an offence?".
One soldier will have a different way of considering an individual than will another soldier. We are dealing with men who are not diplomats. I admit that they are doing an almost impossible job, but in putting this onus upon them we are 331 giving them a privilege—if it can be called a privilege—which can be abused. The more it is abused and the more they use the power of indiscriminate arresting and searching in the streets of Northern Ireland, the more difficult it will be to bring about any political settlement of the problems which affect that country.
A fundamental change is proposed regarding the onus of proof. Nothing like this has ever happened before in the British judicial system. A case was illustrated to me this afternoon. It concerned a public house in the city of Belfast. If a gunman went there and, hearing that the security forces were coming into the area to carry out a search, planted a revolver under a seat in the bar and the security forces carried out a search and found that revolver, that publican would have to prove that he did not possess the revolver. How could he prove that? If a charge was made and he was brought before a court, the 12 men of the jury, seeing the publican before them, would probably believe him in all the circumstances. He might be arrested as soon as he had been acquitted and then detained. I cannot see why the onus of proof should be placed on persons in such circumstances. If it is applied as proposed in the Bill, many people who are not involved in the campaign of violence in Northern Ireland will find themselves brought before a single judge who will be judge, jury and executioner.
§ Mr. McMaster
Is the hon. Member saying that these men with legal experience who are appointed to try these cases would not be able to listen to the explanation given by the publican and discover that the gun was found in a public part of the public house? Will they not listen to the explanation and form a much better, more rational and sensible verdict than would a panel of jurymen who, in Northern Ireland, may be frightened men? The hon. Member must admit that people in Northern Ireland are frightened. If the gun had been left in circumstances in which they were affected by fear in their verdict they would not make good judges of fact. I ask the hon. Member to bear this in mind and to disregard the fear which permeates all levels of society in Northern Ireland, rather than to suggest that a jury 332 is better than a legally trained person for deciding questions of fact.
§ Rev. Ian Paisley (Antrim, North)
is not the hon. Member for Belfast, West (Mr. Fitt) aware that under the provisions of Clause 6 the judge would not make the decision which the hon. Member has suggested he would make? The clause provides thatWhere a person is charged with possessing a proscribed article in such circumstances as to constitute an offence to which this section applies and it is proved that at the time of the alleged offence—(a) he and that article were both present …that person may not know anything about it, or he may say that he lives in a room where it was present andthe court may accept the fact proved …".That is the nub of the situation.
§ Mr. Fitt
The hon. Member for Antrim, North (Rev. Ian Paisley) has put my case better than I could, and in so doing has eloquently answered the intervention of the hon. Member for Belfast, East (Mr. McMaster). In those circumstances the individual will have to prove that he did not have the firearm, or whatever was the implement listed in the schedule of offences.
As I see the situation, this measure will be a further instalment of the coercive and repressive legislation which we have had throughout Ireland's history, particularly the history of Northern Ireland. This legislation will be no more successful than all the other legislation has been. Indeed, it will be as great a failure as all the other legislation because it contains the most obnoxious features of the Special Powers Act. It still allows the Secretary of State to retain the power of detention—or, under another name, internment.
It is almost two years since the people of Northern Ireland first experienced internment—namely, August 1971. Married men have been taken away from their families without being charged with a specific offence, except one that has been manufactured by the Special Branch 333 following action by an informer. Nobody should be behind bars or in detention in Northern Ireland purely and simply on the evidence of an informer. More often than not the informer has been paid. It is a condemnation of so-called British justice that citizens of Northern Ireland have been and are being incarcerated in detention merely because an informer has been paid to give evidence against them.
I recognise that in the Northern Ireland situation steps must be taken to try to curtail the campaign of violence. I have never supported those engaged in the campaign of violence which has raged in Northern Ireland over the past two or three years. But what is clear is that this type of legislation is not the way to tackle the problem. If we pass this legislation, it will be a recipe for further community violence in Northern Ireland.
§ 7.3 p.m.
§ Mr. Edward Gardner (South Fylde)
I listened with great interest and attention to the speech of the hon. Member for Belfast, West (Mr. Fitt) and I wish to take up one issue with him. I have sympathy with what he said in connection with the fact that the right in the United Kingdom to trial by jury is a right which we should not lightly give up. My right hon. Friend the Secretary of State for Northern Ireland said that this right has been highly valued by people in this country. That is true. Trial by jury has its roots in the history of the British people. Those roots go deep, they touch the very bedrock of liberty, and they cannot be interfered with unless there is full justification for such action. I believe that the right to trial by jury is a guarantee against any Government of this country abusing their powers to deprive wrongly any person of his or her liberty. I regard this—and I am sure that most people in this country would agree —as one of the precious privileges of British democracy.
Taking all this into account, and giving it the fullest weight which it deserves, I recognise that before interfering with that right there must be very exceptional and grave reasons for touching the privilege of right to trial by jury. I do not pretend to be an authority on Northern Ireland, but from what I have read—and in a limited sense from what I have seen in Northern Ireland—I take the view 334 which has been expressed by Lord Diplock and his Commission that the acts of terrorism in Northern Ireland have chilled witnesses into silence and in some cases have provoked perverse verdicts by juries. It is difficult, if not impossible, to analyse the matter statistically. One cannot say with any certainty that a jury has come to a perverse verdict, because one does not know what goes on in the jury room and one does not know how a jury reaches its verdict.
§ Miss Devlin
I have often heard hon. Members on the Government benches arguing for the abolition of juries on the grounds of intimidation of witnesses. Evidence of intimidation of witnesses relates to a different matter because it involves procuring a charge, whereas a jury is involved in procuring a conviction or an acquittal. Therefore, it is misleading—and I am sure that the hon. and learned Member for South Fylde (Mr. Gardner) does not intend to mislead —in outlining a case for the abolition of juries to argue the case as it affects witnesses. Lord Diplock said in his report that he was not given one single case of a perverse conviction in Northern Ireland.
§ Mr. Gardner
I recognise the distinction between intimidation of witnesses and the perversity which a jury might demonstrate by its verdict. I have conceded the difficulty of analysing or proving the case statistically in terms of how great that perversity is and how often it occurs. I am inclined to accept the conclusion of the Diplock Commission on this aspect. If I did not accept its conclusion—if I did not believe that there were exceptional and grave reasons for temporarily supend-ing the use of the jury—I would be wholly opposed to this part of the Bill.
§ Mr. A. W. Stallard (St. Pancras, North)
Is the hon. and learned Gentleman saying that he doubts whether it could be proved that there is perversity among juries in bringing in verdicts? I have always understood that where there is doubt, a jury is entitled to take it into consideration in coming to a decision. How can it be said on the one hand that there may be a doubt when on the other hand that argument is used to arrive at the conclusion that the situation justifies doing away with trial by jury?
§ Mr. Gardner
What I do not doubt is that prejudice exists in certain sections of the population in Northern Ireland. It affects the minds of potential jurors and makes many of the verdicts unsafe, and frequently unjust. I accept Lord Diplock's view as a cogent one—a view on which this House can act. If we accept that view, we must look at the matter in a different way and in a different light—
§ Mr. Frank McManus (Fermanagh and South Tyrone) rose—
§ Mr. Gardner
I am sorry I cannot give way. I have already given way twice. We must look at the matter in a different way when we consider Clause 1 which does away with jury trials for terrorist activities.
I should like to sound a note of warning, one to which I hope this House will be alive and of which it will take notice. As the hon. Member for Belfast, West said, the right to jury trial is something that cannot be given up lightly and should not be given up lightly. When steps are taken which might cause a slide away from trial by jury it is sometimes difficult to stop the slide. I should be appalled— and I hope that my feeling of abhorrence would be shared by hon. Members on both sides of the House—at the prospect that the abandonment for the moment of the jury system in trials in Northern Ireland was something which those who oppose the jury system generally—and there are people of this mind—might latch on to and later adopt for the purpose of arguing that the jury system should not be brought back again to Northern Ireland or that its use should be diminished in any way in any part of this Kingdom. I am sure that this is a fear which will not materialise in the future if we keep well in mind the perils of suspending in a temporary way the rights which are inherent in our system and remember that we must restore those rights as soon as we can.
Finally, I should like to demonstrate to the House now the danger to which I have just referred of a slide away from the jury system and trial by jury and how easy it is to find oneself giving way to the general principle that if there are exceptional and grave reasons for abandoning the jury system we can afford to start allowing such trials of offences other than those which are inspired by or carried out by terrorists.
336 In paragraph 41 of the Diplock Report there is a view expressed by the Commission with which I wholly agree. It warns that counts for scheduled offences —that is, offences inspired by and carried out by terrorists—and offences which are non-scheduled offences—that is, ordinary criminal offences—should not be joined together in the same indictment. This means, in effect, that where a terrorist offence is being tried it should be tried separately and apart from any offence which is not a terrorist offence covered by the schedule.
But what does the Bill do in its present form? Looking at Clause 1(3) we see that separate counts of an indictment alleging a scheduled offence and an offence which is not a scheduled offence are to beconducted in accordance with this section".In other words, there is an example of a mixture of the two offences, which I submit to the House is repugnant. If we are to have, as I believe we must, this abandonment of trial by jury only in special and exceptional cases, we must be very careful indeed that we contain this power and the ways in which this power is used.
It is all too easy for the courts or the administrators responsible for the courts to argue, or for the enemies of trial by jury to say, that if we do away with juries, if we take over and give the case to a single judge, we speed up the trial, shorten the trial and get through more cases, and that justice is bound to benefit. But it does not. According to paragraph 38 of the report the incidental benefit of doing away with juries is that trials are shortened, so enabling more cases to be dealt with. That is not a good reason for doing away with juries.
Whereas I have already submitted to the House that I believe that we must, in the exceptional circumstances that obtain at the moment, unhappily, in Northern Ireland, accept that cases will have to be tried by a single judge, I beg this House to remember the dangers of allowing that principle to go beyond what is absolutely necessary because of the tragedy of Northern Ireland today.
§ 7.17 p.m.
§ Mr. A. W. Stallard (St. Pancras, North)
I listened fascinated to the hon 337 and learned Member for South Fylde (Mr. Edward Gardner). He made what sounded to me an excellent case for voting against this measure tonight. No wonder that laymen such as myself and people outside are often puzzled by verdicts after hearing the evidence and listening to trials. I heard what I thought was a good demolition job on this Bill. But the hon. and learned Member ended with almost exactly the opposite conclusions from those for which I felt he had spoken.
I almost got the impression at one stage that he was saying that because we feel, or know, or suspect that there is a certain amount of latent colour prejudice in a certain part of London, or Britain or wherever, we ought to have another look at the jury system. If there is anywhere the same kind of prejudice and emotional upsurge as Diplock mentions in connection with Northern Ireland, perhaps the hon. and learned Member would like us to look at the jury system in those cases, too. Or perhaps where there is anti-Semitism we should look at the jury system.
This has made me sad because, again as a layman, I had hoped that members of the legal profession would be in the forefront of the battle tonight to retain this hard-won right of trial by jury. I am a little worried, therefore, when I hear very well-respected legal men putting all the arguments against this but then reluctantly accepting it because it is somewhere else, in Norhern Ireland.
I remember the statements in the House last week when we were all shocked by the Peter Niesewand case in Rhodesia. I remember agreeing with every one of them made from both sides of the Chamber.
§ Mr. Stallard
Two Early Day Motions put down by hon. Members from different sides of the House seem to sum up the discussion in that instance. One says:That this House emphatically condemns the savage sentence on Mr. Peter Niesewand, after a secret trial in Salisbury, Rhodesia; draws attention to this further evidence of the repression of free speech by the authoritarian Smith régime …I agree 100 per cent. with that. Whether it is Rhodesia, Zambia, Malaysia or 338 Northern Ireland, I agree with the sentiments expressed in that Early Day Motion. I heard hon. Members on the other side paying lip service to that. In fact nearly 100 of them signed it.
The other Early Day Motion emanated from the other side of the Chamber. It said:That this House deplores the decision of the Rhodesian authorities to hold the trial of Peter Niesewand in camera without allowing any details of the charges to be known; shares the great concern already expressed by the Secretary of State for Foreign and Commonwealth Affairs …I agree with that as well and I am only sorry that the Secretary of State for Foreign and Commonwealth Affairs is not here tonight to make the same kind of representation about the kind of trials we are to set up in camera if this Bill goes through in the United Kingdom.
§ Mr. Arthur Davidson
What my hon. Friend says is completely accurate. But does not he agree also that the excuse which Rhodesia, the Soviet Union, Spain, Portugal, Greece, and South Africa give is always, "These are exceptional circumstances and we are altering the rule only because the circumstances are exceptional. We would never do so otherwise"? In this case—the exceptional circumstance is the need to suppress terrorism.
§ Mr. Stallard
I am grateful to my hon. Friend for finishing the point which I started to make. He is absolutely right, of course. Wherever we find this practice, it is always for exceptional circumstances—
§ Mr. McMaster rose—
§ Mr. Stallard
No. I will not give way. I wish to make a number of points and I have promised to be brief. I want to fulfil my promise.
§ Mr. Stallard
No, I will not give way. My main objection—and again I do not take legal objections because I do not profess to know too much about the legalities of the situation—is that I felt it was unwise to set up the Diplock Commission in the first place. I said at the time that I did not agree with it 339 because I did not think that it was possible to deal with the problems in the Six Counties piecemeal. It is no good reacting to events. We have to take a wider approach if we are to get near to any solution. It is not good enough to move bit by bit. It is no good, when we come up against a problem, introducing a Bill or having a bit more military action. That is not the way to solve the problem in Northern Ireland. For that reason, I did not agree with the setting up of the Diplock Commission, with the terms of reference that it was given. They were much too narrow.
As a number of my hon. Friends have pointed out already, it appears that part of the basis for the Diplock Commission was conviction-oriented. It was to get more convictions. It was felt that we were not getting enough on the present system and that we ought to do away with juries because they were not efficient enough to get the convictions that we wanted. That cannot be the right approach. We had an opportunity to move towards a solution. I am sad that it was not taken.
I have never agreed with the approach of the Secretary of State to internment. I still do not. I hope that one day I may be able to agree with him about it, but that day will come only when he ends it. Until then I cannot agree with him. There was an opportunity, and now there is another to make a clean break from this military approach. Let us adopt a much wider politically-based approach to the problem of Northern Ireland. I know that that is difficult.
Having read the Bill I contend that despite what is being said today, it is simply an extension of the Special Powers Act. Certainly it maintains or continues internment or detention, by whatever fancy name it is called. People always used to be unemployed, but today they are redundant. It used to be called internment, but now it is detention. However, people taken to Long Kesh or to the Maze prison do not differentiate between internment and detention. They are inside and they have to undergo all the rigours which accompany their situation.
The argument is that we have to deal with terrorism. However, in my view we ought to stand back a little and look 340 at some of the causes. To do that one does not have to go back much further than 9th August 1970 when this Government introduced internment. It is one of the root causes of many of the problems which have existed since.
The present Government and others have misread and misjudged completely the social implications of internment and the Special Powers Act. They do not realise that they are both major symbols of the minority grievance, always have been and will continue to be until the Government do away with them. I remember spending the first two weeks of my first parliamentary recess together with my hon. Friend the Member for Islington, North (Mr. O'Halloran) trying to recall Parliament in order to discuss internment. We succeeded in getting a fair number of hon. Members to agree that Parliament should be recalled. It was recalled a few weeks later—and too late. Nevertheless, it was recalled and we made our views known.
I have not changed my views about internment since. But I do not think that the effects socially and in every other way have got home to a considerable number of hon. Members. It is not sufficiently realised how deep the hatred of internment and the Special Powers Act has gone, nor how this one-sided application of a repressive measure has affected the entire population. It has been counter-productive. This legislation will be the same.
All that we have to do is to look at what has happened since internment and at what it has achieved. What happened after the introduction of internment? The hon. Member for Belfast, East (Mr. McMaster) may smirk, but let us see what has happened since its introduction. It has been responsible for the polarisation of the two communities. Certainly it has been responsible for the alienation of the minority—
§ Mr. McMaster rose—
§ Mr. Stallard
It has been responsible for training a significant brotherhood of Long Kesh graduates. People who spend any length of time there, if and when they come out, find it difficult to resist 341 the pressure to carry on the battle from outside. That is understandable. We all know the conditions which exist in that unhappy place and in others which some of us have visited. We know of the spirit amongst the thousands of relatives of those involved, and we know what that has done to local communities. That is why I say that the introduction of internment and of that repressive measure has not succeeded. This legislation will have the same effect. The people will never be defeated by a repressive and military approach to the problem. Sooner or later we shall have to sit down and consider it in a broader context. We have to get out of the military straitjacket. Only then shall we have a chance to get somewhere.
When I first read the White Paper I was hopeful enough to think that we were beginning to create an atmosphere in the Six Counties in which those who wanted to work for this kind of solution would be able to operate. I saw the White Paper as a beginning—
I am grateful to the hon. Gentleman for at last giving way. I am sure that he does not want to mislead the House. Internment was introduced in 1971, not 1970, and far from it being responsible for violence, there had been two years of violence, starting with the riots in Londonderry in 1969 and continuing through 1970 and 1971 with vicious bombings in the centre of Belfast. I am sure that the hon. Gentleman will take that from one who has lived through this period. Was not that the cause of the alienation of the people, rather than the effect of internment? I ask the hon. Gentleman to think about it.
§ Mr. Stallard
I am thinking about it. I take the hon. Gentleman's point about the date of the introduction of internment. If I had it wrong, I apologise. But the principle is the same. I maintain that the measure was counter-productive and produced all the evils that I spelt out. Certainly there has been more violence since. However hon. Members on the Government benches juggle with dates to try to make out a case for internment, they will never succeed. Therefore, I say that this Bill will not help in the production of a climate in which people can 342 work towards a peaceful political situation.
The contrary is probably true. If I needed any further justification I should refer to what the Secretary of State said last week. He gave another kind of catalogue, almost exactly the opposite catalogue to that which we have heard week in and week out from the hon. Member for Belfast, East. The right hon. Gentleman gave us a catalogue of successes. He told the House how more people had been arrested and how more people had been tried. He told us that there were more successful trials and that more people were inside. He said that we were getting on top and that we were winning.
After listening to the right hon. Gentleman I began to wonder why there was a need to introduce this measure. Why is it necessary if things are going so well? It was the Secretary of State who said that things were going well, and not my right hon. or hon. Friends.
I have said that this measure perpetuates the Special Powers Act. The position might be worse, if that is possible. Under the Special Powers Act there was a jury system and there were trials by jury. It is difficult to see how this measure even contributes towards any kind of solution in the present circumstances.
Like other hon. Members I have tried to understand the Bill and I have tried to take some advice from my legal hon. Friends. I have tried to understand the gist of the Bill so that I should know what is happening. I summarise the situation by saying that the Bill will allow all proceedings before the commissioners and the police tribunals to be held in camera. The Bill will permit unsworn statements as evidence. We have heard that spelt out tonight. A detainee and his lawyers can be excluded from any part of the proceedings and can be excluded from hearing the alleged proof against a detainee. A detainee and his lawyers can also be deprived, during their absences from the hearing, of the right to cross-examine witnesses.
Nobody can be happy about that kind of innovation. It appears that legal evidence is not required and the Commission can accept evidence which would be inadmissible in an ordinary court of law. This 343 is not happening in Rhodesia or in any far-away place but in the United Kingdom. These events are taking place only a few miles away.
A detainee can be kept in detention solely because he is suspected. He can be picked up on some kind of suspicion. I should love to spend another hour and a half spelling out suspicions. The Secretary of State can act as the accuser, the judge, the jury and counsel for the prosecution.
We should be careful about passing this measure tonight. I shall be voting against it if only because I have to maintain my consistency on internment. I feel that the legal profession are prepared to give way, however lightly, as some hon. Members have suggested. If they are prepared to give up the right which every British citizen has, wherever he is, of trial by jury, then the rest of us may have to fight to retain it.
§ Mr. Gardner
The hon. Gentleman has misinterpreted seriously what I said. I did not say that we should give up these rights lightly. I said that we should give the matter the most serious consideration. Indeed, I did so, and explained those considerations carefully to the House.
§ Mr. Stallard
I accept that correction from the hon. and learned Member for South Fylde. I had the impression that he said that we should not give up our rights lightly. I say that we should not give them up, full-stop. That is the difference between us. If that is the difference between the legal profession and the non-legals, I stand for the non-legals.
That is the kind of thing for which we should be fighting. For all the reasons which have been stated from the Opposition benches, and for the reasons which will be stated by all thinking people outside who are seeking a political solution in the context with which I have been trying to deal, I hope that the Secretary of State will have further thoughts about this measure. I hope that those who feel like me will vote against it.
§ 7.35 p.m.
§ Rev. Ian Paisley (Antrim, North)
No one who believes in democracy could be enthusiastic about the Bill. There is no point in our wearing blinkers. The 344 Bill strikes at the rights of the individual, hard and forcibly. On the other hand, it must be said clearly, strongly and as dogmatically as possible that there are circumstances now prevailing in Northern Ireland that are both frightful and horrifying.
Those circumstances do not operate against the Roman Catholic population or the Protestant population alone. They operate across the board. There are assassinations, murders, kidnappings, plots and counter-plots and conspiracies and counter-conspiracies. Only those who live in Northern Ireland—and Opposition hon. Members who represent constituencies in Northern Ireland are as well aware of this as I am—will know that a frightening situation has developed and is developing.
As far back as July last year I suggested that the Government should consider law and order seriously. The Government have dragged their feet. Various matters should have been considered urgently. While I am sure that all hon. Members will want to protect the rights of the individual, we must also understand that the community in Northern Ireland—I am not talking of one section of the community but of the whole community—is in a life and death struggle for its very existence. The rights of individuals must be balanced with the rights of the community.
In order that we might consider objectively the proposals before us we must keep that balance clearly in mind. I preface my remarks by drawing attention to a matter on which I must register a difference of opinion with my hon. Friend the Member for Esher (Mr. Mather), for whom I have the utmost respect. He said that because law and order had broken down in Northern Ireland it was necessary to introduce internment. Nothing could be further from the truth. Law and order had not broken down when internment was introduced. If the law of the land had been operated properly, fairly and rigorously, there would have been no need for the introduction of internment.
Let this House remember that internment was introduced in a double-handed manner. Mr. Faulkner announced that he would ban the parade of the Apprentice Boys of Derry. That was to be a 345 sop, evidently, to the Roman Catholic-population. Then he said that he was bringing in internment. That was evidently to be a sop to the Protestant population.
I made myself unpopular in Northern Ireland because I was one of the few Protestants who condemned internment and its introduction. Those people who are now protesting against detainment and internment because Protestants are being detained and interned were among my strongest critics. They have now discovered what I always believed, that internment is not the answer to law and order in Northern Ireland. We should not blink the facts. People were rounded up initially from the Roman Catholic community because it was from that community that the IRA recruited. The whole Roman Catholic population then became indignant and aroused and antagonised because they saw their coreligionists interned without trial.
Mr. Faulkner said that he did not sign an internment order without the greatest possible evidence that that person should be interned. Yet within a few days he was letting out some people who had been interned. He cannot have it both ways. This led to a very serious situation.
I was not enthusiastic about the original detention order, but in the circumstances I said that I was prepared to go along with the Government. But tonight I feel, personally, greatly aggrieved because the detention proposal which is now in the Bill is putting the gloss of a trial by law upon what is internment in its worst possible form. The members of the legal profession in Belfast refuse now to go to tribunal trials and none is taking place in Long Kesh any more. They have been adjourned because counsel and solicitors on both sides of the religious fence will not attend. I know this because representatives of the Bar, Roman Catholic and Protestant, approached me.
I led a deputation to the Minister of State at Stormont the other day including a Roman Catholic solicitor and counsel and a Protestant solicitor and counsel. They told him clearly that, as professional legal representatives, they were not prepared to be humiliated in going to a court of law. They were not prepared to be subjected to a search, to 346 having their cases opened and their papers read and to being ordered to take off their shoes.
§ The Under-Secretary of State for Northern Ireland (Mr. Peter Mills)
They do that with me.
§ Rev. Ian Paisley
So they may, if the Under-Secretary submits himself to that procedure, but the legal profession in Belfast will not submit themselves. They admit that there is a security situation in the Maze Prison and that there have to be precautions. They suggest that they should be escorted from the prison gate to the courthouse and they have no objection to their clients being searched after they have talked to them; they would then agree to being escorted back to the gate.
One thing they say, I look on very seriously. The members of my deputation said, "When we go to Crumlin Road Prison, we are not subjected to these indignities". But we had hardly left Stormont Castle when the same rigorous searching started at Crumlin Road and my phone was heated up by the complaints of solicitors who had never been searched before but who were now being subjected to these indignities.
§ Mr. Mather
I cannot understand this fuss about searches. We do not have identity cards and we have to be searched when we come to this House. There is no indignity in this House.
§ Rev. Ian Paisley
By saying that, the hon. Member—for whom I have the greatest respect—shows that he does not understand the situation. Is his case opened, are his papers taken out and is every page of his book turned over? Is he searched and asked to remove his coat? One prominent solicitor was asked to remove his shoes.
I have been subjected to road checks in Belfast in my own area, and have always submitted myself to the rigours of searching. These are men of the legal profession, going to a court of law to do a job of work for a client and they are being treated in this way. This is not right. If this House or the Government say that the searches must continue, the legal profession will not carry on the tribunals.
347 The original proposal about evidence being given in secret related to any "part" of the proceedings. When I read that in the original order, I thought that it referred to just a part of the proceedings. But it now affects the whole of the proceedings.
In one case, which is no longer sub judice, learned counsel and a solicitor attended the trial of a detainee. The counsel for the Treasury got up and said, "We do not want any of the evidence which we have presented to be heard by the detainee or his representatives. They will have to leave the tribunal room." When the counsel and solicitor rose to go, they were told that they could listen to the anonymous gentleman behind the screen, whose brown boots were the only evidence that he was there, taking the oath. They said that they did not want to hear him take the oath; they wanted to know what he would say.
They had to leave the room for 90 minutes. When they returned, the Commissioner said that, in view of representations made to him, no part of the evidence could be made known to the detainee's representatives, other than that the man was accused of belonging to a proscribed organisation and that, on or about a certain date, he had conspired with others to cause an explosion.
The learned counsel addressed the brown boots thus: "How do you get the information that my client belongs to an illegal organisation and conspired to cause an explosion?" The answer was, "I was informed." Counsel asked, "Will you name your informer?" The answer was, "No; in the interests of security, the informer's name cannot be revealed." By the way, the detainee concerned was a Protestant. I say that in case someone thinks that a Roman Catholic Republican has sold me this story, hook, line and sinker.
Then the learned counsel asked, "Did you pay for your information?" Before brown boots could check himself, he had said, "Yes." Counsel asked, "What amount of money did you pay?" The answer was, "In the interests of security that cannot be told." The next question backed up something said earlier: "Has your informer a criminal record?" The answer was, "In the interests of security, that cannot be revealed." That was all 348 the evidence. This is a serious situation, and we should face the fact. I emphasise that we are in a serious situation in Northern Ireland. Everyone in the House knows that my policy is for the defeat militarily of the Irish Republican Army. It has to be put down and defeated. But we need to have a very careful look at the legislation we are being asked to pass tonight.
I am glad that the Secretary of State said that he would welcome our looking at the legislation. I am attempting to look at it through the eyes of those people whose lives will be affected by the result of it.
I come secondly to the first part of the Bill. I am very disturbed about this. I tabled a series of Questions in Stor-mont, as the hon. Member for Belfast, West (Mr. Fitt) knows, before Stormont was prorogued. I asked the Attorney-General whether he had any evidence of the intimidation of juries, and whether he had any evidence that juries brought in perverse verdicts. His answer was "No." I tabled a Question on this matter soon after I became a Member of this House. I could not get any evidence that juries were intimidated or had brought in perverse verdicts.
That is why I intervened earlier to ask the Secretary of State for some evidence of this. If we had evidence of this today, it would help us in making up our minds on parts of this legislation which, naturally, are "unpalatable". I quote the Secretary of State's own words to us. But there is one thing I cannot understand, and it is this: if juries can be got at, so can judges.
An honourable Gentleman spoke about religious affiliations of judges. Perhaps that comes into it. But I want to bear testimony that I believe that the judges and magistrates of Northern Ireland have done a very fine job of work. There may be one or two exceptions, but on the whole they have put their religious opinions aside, and some of them have risked their lives. Some have been shot. I think especially of Mr. Staunton, a Roman Catholic magistrate, who was brutally gunned down and whose life came to a terrible end simply because he sought to be fair, just and honourable on the bench. I want to put that clearly on the record.
349 Judges and magistrates can be got at in Northern Ireland. It is easier to get at a judge, who is already appointed and whose name and address are known, than to get at 12 jurymen who are picked only for a limited time and for a particular case. That should be absolutely clear.
Will the Attorney-General say how many jurymen have been intimidated? Will he tell us in how many cases he thinks that perverse verdicts have been brought in? I think that I quote the Secretary of State correctly. He said that they were "strange" verdicts. Those verdicts may seem strange, but we are not in possession of all the facts. We see only a cursory summary of the matter in newspapers. Perhaps if we were aware of all the facts we should be better able to say whether those verdicts were in keeping with the evidence. That would be very helpful to us. It is essential evidence in discussing this matter.
§ Mr. F. P. Crowder (Ruislip-Northwood)
When the hon. Gentleman says that judges have been "got at", it ought to be made absolutely clear that they were got at not on the basis of bribery but on the basis of intimidation. One does not want any mistake about that. In eighteenth century form in this country, the phrase "got at" usually meant bribery.
§ Rev. Ian Paisley
In Ulster parlance today, "got at" means intimidation.
There are judges living in areas which are strongly Republican and judges living in areas strongly Loyalist. They are putting away Loyalists and they are putting away Republicans. I am thinking of one judge who lives in West Belfast. He is a very well-known man. I shall not mention his name. He goes in and out of a house in West Belfast. He has put IRA men away for long terms of imprisonment. He goes through a Republican area to the court every day. It is quite possible that he could be got at by terrorists who wanted to wipe him out or to do him grievous bodily harm. I was speaking to him the other day. I commended him for his courage, tenacity and integrity in doing his job. I am sure that the House is grateful to such men for the difficult task they are performing.
Turning to Clause 2, I accept that because of the emergency certain regula- 350 tions must be retained, but surely the Attorney-General would agree with me that when such cases are proceeding, they should proceed as quickly as possible. I am not happy about the 90-day period in regard to the granting of bail. That means that if a man is in for 89 days, he can be told "You are only in for 89 days. You will not get bail." Ninety days is a long time. Not many hon. Members have been in prison. I have. I know that 90 days in prison is a long time. Sometimes I wish that the legal profession had to serve a term of imprisonment. They would then sympathise with the people whom they help to put away for considerable stretches. I would not suggest that the right hon. and learned Gentlemen on both Front Benches should serve a term in Northern Ireland, but perhaps they could serve it in one of the better prisons in their own country.
I draw the attention of the House to the almost impossible criterion to be followed by the judge:A judge shall not admit any such person to bail unless he is satisfied that the applicant … will not commit any offence while he is on bail.How could any judge be absolutely satisfied that the prisoner might not park on the wrong side of the road or exceed a speed limit of 40 miles an hour? This involves "any offence", not only criminal offences. Whoever drafted the Bill was not cognisant of some very important points in Northern Ireland.
On page 11, Clause 18(3) states:The organisations specified in Schedule 2 to this Act are proscribed organisations for the purposes of this section; and any organisation which passes under a name mentioned in that Schedule shall be treated as proscribed, whatever relationship (if any) it has to any other organisation of the same name.When I read that, I nearly passed out.
Are hon. Members aware that there is an Ulster Volunteer Force hospital in Belfast in which members of Her Majesty's Forces receive treatment? Are hon. Members aware that an ambulance bearing this name travels through the streets of Belfast? It is an Ulster Volunteer Force ambulance with the red hand on it. Are hon. Members aware that the security forces have called in this ambulance time after time and attempted to arrest its driver? Only after considerable representations to the military authorities has this man escaped being taken 351 to Long Kesh or to a closed prison. I happen to know the gentleman concerned.
Those who draft such Bills should make themselves aware of the facts in Northern Ireland. I have drawn attention to a glaring inconsistency. There is another on the same page to which I draw attention. It is Clause 18(1)(b) which says that any person whosolicits or invites financial or other support for a proscribed organisation, or knowingly makes or receives …Allied Irish Banks gave £5,000 to the Irish Republican Army the other day— under threat of force. Is the Attorney-General prepared to allow prosecutions against people who are forced to give money to these organisations? If so he will have a lot of people to prosecute.
I know of old-age pensioners whose doors are knocked on in certain areas of Belfast, especially in the area covered by the constituency of the hon. Member for Belfast, West. An hon. Member of this House was in the home of an old-age pensioner. There was a knock on the door and her son came in and said, "That's the IRA men for their money ". That woman had to give 50p to the Provisional IRA. That is a fact because the hon. Member said, "Don't you give it. I am prepared to give it because I know that you need your 50p, mother." Those are the facts. Intimidation is taking place. I do not say that it is only on the Roman Catholic side. There are people paying safety money in other places in the city of Belfast.
Let us get this straight and above-board. This is an important part of the Bill. I would have liked to deal with many other parts but I have already spoken for too long. I want to deal with that part of the Bill which concerns powers of arrest. This is very widely drawn. Clause 9 says,Any constable may arrest without warrant any person whom he suspects of being a terrorist.Why is that put in the widest possible sense? Every constable can suspect anyone. I ask the Attorney-General why he did not include the word "reasonably"? The clause goes on in subsection (2):For the purpose of arresting a person under this section a constable may enter and search any premises or other place where 352 that person is or where the constable suspects him of being.Why not "reasonably suspects him"? The constable is never answerable to any authority. He says, "I suspect and in I go". Surely the word "reasonably" should be inserted here. In Clause 10(1) we find the following:Any constable may arrest without warrant any person whom he suspects—not" reasonably suspects"—of committing, having committed or being about to commit a scheduled offence or an offence under this Act which is not a scheduled offence.The same power is given to Her Majesty's forces.
The amusing thing arises with these inspectors under Clause 13, whoever they are. These individuals have the power to stop a person in the street and to say, "I am an inspector appointed under Section 53 of the Explosives Act 1875". If a man stopped me in the street and told me that I would think twice before allowing him to see my car or to do-anything about the vehicle in which I was travelling. How can the ordinary general public understand that an inspector has the right to stop people in the street? Surely this should be limited to members of Her Majesty's forces.
Clause 14 contains another anomaly. It speaks ofany person believed to be unlawfully detained in such circumstances that his life is in danger".If he is unlawfully detained, whether or not his life is in danger, the security forces should be able to go in and bring him out. But that is permitted only in circumstances when he could be murdered, according to the clause. He could be unlawfully detained, kidnapped and held for a considerable time to supply an alibi for someone committing a crime or perhaps because his car has been taken to assist in committing that crime. I suggest that where a person is believed to be unlawfully detained, then any member of Her Majesty's forces has the duty to go in and bring out that person, irrespective of whether his life is in danger.
Clause 16 gives power to any member of Her Majesty's forces to take possession of any land or property and to take steps to place buildings or other structures in a state of defence. Is there 353 any right of appeal here? If the Army moves in and a soldier says, "I am taking over your home", is there any appeal or is his word final? The occupier of such property would naturally feel aggrieved and would want to appeal against such a move. Will someone have the right to hear what he has to say and to receive his submissions?
Another part of the Bill disturbs me is Clause 23 which says:The Secretary of State may by regulations make provisions additional to the foregoing.This is another line of country altogether. When we are dealing with the rights of the individual, as we are in this Bill—and in view of the serious situation in Northern Ireland and the rights of the community which must also be protected —there should be special constitutional safeguards hedging around every emergency provision so that those provisions can be scrutinised by Parliament not in 12 months' time but in a much shorter period of time.
I have mentioned the things which disturbed me about the Bill. There are amendments which need to be made to it. I regret that the Leader of the House has been unable to find time to hold the Committee stage on the Floor of the House. When we are dealing with a proposal of such constitutional magnitude this is the place for it. It will not affect hon. Members representing parts of the country other than Northern Ireland. Such hon. Members will not have people coming to them saying, "My son was lifted tonight and taken away. What can I do?" We shall have people lining up saying that. The opportunity should be given to every Northern Ireland Member to put forward amendments. This is important to the people of Northern Ireland. We will not give away our liberties easily, willy-nilly. We will make a fight for what liberties we have.
While I differ from Labour Members on many matters, I feel that tonight there are many of us on both sides who are, to say the least, uneasy about these proposals. It was a valid point to make that the Government are putting scheduled and non-scheduled offences into trials without jury. Here we have a mingling of these crimes. There should be a clear distinction between ordinary crimes and crimes against the State, designed to bring down the State.
354 I hope that the Attorney-General can give us some satisfaction on these vital points. I hope, too, that he will say that the ambulance which carries British Servicemen to and from the Craigavon Hospital will still be able to go to and fro in Belfast and that the poor driver will not again be subject to scrutiny. I hope, too, that the right hon. and learned Gentleman will see that members of his profession have the way opened to them to attend these tribunals in the Maze Prison to provide some representation to those unfortunate enough to be brought before such tribunals.
§ 8.10 p.m.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
The hon. Member for Antrim, North (Rev. Ian Paisley) was wrong on at least one important aspect in this regard. He said that only the sons of people in Northern Ireland were being lifted and that it was only they who would feel the effects of the legislation. The reason why so many hon. Members are opposed to the legislation is that our friends, our constituents, our sons, are affected by the legislation. The people affected will be also those serving in the Army in Northern Ireland and those soldiers who will be the victims of the terrorists' bomb or bullet if the policies in the White Paper and the Bill are not successful. We are opposed to the legislation because we fear both for our sons who are over there and for the people of Northern Ireland and the effect that this legislation might have on our own system of justice. It is for these reasons that I cannot support the Bill in the Lobby tonight.
An essential feature of our liberties in this country is not only that we have the establishment of facts and the application of the law to those facts, but that the defence of the individual against arbitrary Government and executive action is through the procedures by which those facts are arrived at. Any weakening of procedural justice is a weakening not only of the rights of the individual, but of the community as a whole, because the community is an organisation of individuals. If we weaken the rights of one we immediately start a chain process which can weaken the rights of the others.
The great weakness of the Diplock Report, apart from its understatement, lack of evidence and statistical proof and the fact that it is based upon hearsay 355 because it does not support any of its conclusions by positive evidence, is that it ends by a half aside, a hint, a nod, that it might perhaps be a good thing if some of the ideas contained within the report came across to England.
If we allow what is proposed in this legislation to go through unaltered, there will be pressures on us to have that sort of stuff in England. Therefore, we are afraid and worried about such items as proscribed organisations, guilt by association, detention, the treatment of young prisoners, the question of bail and prisoners' statements and of scheduled and non-scheduled offences. If that idea permeates across the Irish Sea into England our liberties will be put at risk.
It would not be long before we heard the suggestion, "As we have not been able to prove a case against the Angry Brigade or against somebody else who commits a crime of a political nature, we must have what they have in Northern Ireland." Then it would not be long before we heard the suggestion, "That man broke into a bank to steal money for a political purpose whereas another man stole money to put into his pocket. Therefore, one man will be subject to one set of rules and the other to another set of rules." Eventually, there will be pressure from the police and the public that the weaker set of rules should be used in all cases. So we erode our liberties. This is why I cannot accept the Bill.
Then we come to the justification of the Bill. The whole argument is a tremendous hoodwink. It is, "We are abolishing the Special Powers Act except for those bits which we still deem necessary." When we look at the bits which are still deemed necessary, we find that they have been in continuous use since the troubles began, since William Craig first signed his order against the Republican clubs banning the marches. These bits have been in use all the time. The other bits which have not been in use have been pushed away.
The argument is that we are doing away with the Special Powers Act. Section 1(3) of the Special Powers Act provides:The Minister of Home Affairs shall have power to make regulations—Clause 23 of the proposed Bill provides:
- (a) for making further provision for the preservation of peace and the maintenance of order, and
- (b) for varying or revoking any provisions of the regulations".The Secretary of State may by regulations make provision additional to the foregoing provisions of this Act for promoting the preservation of the peace and the maintenance of order.So we have the Special Powers Act right there in the Emergency Provisions Bill.
It will be argued, "But this is different. We must now have an order of the House once a year to keep the Act going. Of course, we might be very good. We might let it be every six months if we give way gracefully to the Opposition and to the hon. Member for Antrim, North on this argument."
Let us look at the other reasons for this Bill. It is encumbent upon the Government to show, not that they have a hunch, not that they think it will work, but that they have positive statistical evidence that the legislation, if introduced, will be successful.
I tabled a series of Questions on all these various points. They are in HANSARD today. I asked the Attorney-Generalwhat estimate he has made of the numbers of prosecutions".The Attorney-General put my Questions together and replied:It is not possible to make a statistical calculation of the number of such persons. It is estimated that the number of prosecutions should increase.It is estimated, but there is no evidence.
§ The Attorney-General
May I suggest that the hon. Gentleman first reads the Questions before reading the Answer?
§ Mr. McNamara
I was coming to that. I was giving the conclusion and then coming to my Questions. I will read through the whole blinking lot and take half an hour doing so if that is what the right hon. and learned Gentleman wants. All the Answers from the Attorney-General and the Secretary of State for Northern Ireland have been most unsatisfactory in this regard.
357 I asked, first,what estimate he has made of the number of persons in Northern Ireland who will now be brought for trial and for which offences under the provisions of the Northern Ireland (Emergency Provisions) Bill who could not be brought for trial under existing Northern Ireland legislation;(2)how many people at present detained under interim custody orders or detention orders … will be brought for trial …(3)what estimate he has made of the numbers of prosecutions, and for which scheduled offences, which will now be brought as the result of the enactment of Section 4 … concerning the admissibility of written statements…(4)what estimate he has made of the number of prosecutions … which will now be brought against persons detained under interim custody orders".The Attorney-General replied:It is not possible to make a statistical calculation".Is that fair?
§ The Attorney-General
The hon. Gentleman, though I disagree with him, is always fair. The answer states that it is impossible to make a statistical calculation. It has also given the estimate that prosecutions should increase.
§ Mr. McNamara
It is an estimate that prosecutions should increase, but there is no real evidence whatsoever of the type of thing for which we are looking if we are to pass this legislation. We are entitled to ask for this evidence because these are important inroads into the safety, security, and civil liberties of the people of Northern Ireland as a whole.
Let us consider, for example, the onus of proof being altered and the question of written statements by the accused. One would think from the evidence and the weight that is attached to it by Diplock and the alarming things that he has said that there were a great number of cases where confessions had been ruled out. But the Attorney-General said:During the period 30th March 1972 to 13th April 1973 the statements of 21 accused persons were … held to be inadmissible on the grounds that they did not satisfy the tests that such statements must be freely and voluntarily made."—[OFFICIAL REPORT, 16th April 1973; Vol. 855, c. 33–4.]We are now going from a test that is not free and voluntary but is falling just short of torture and inhuman treatment. We cannot do that. Again, we have the onus of proof switched in the case of pos- 358 session of arms and explosives and similar offences.
These are important questions that need an answer. The learned Attorney-General replied that 39 cases were not successful because of switching the onus of proof. These 39 cases and the 21 cases may all indeed have been very serious ones, but whether in the context of the Northern Ireland situation they justify the change of rule of law is very doubtful. On the question of bail, I asked the Secretary of State:… how much money has been forfeited to the Crown as a result of persons not surrendering to bail in Northern Ireland.The reply was that the information was not available at the moment, but was being sought. I then asked him:How many persons charged with offences arising from the present unrest in Northern Ireland have applied for bail and to which courts; in how many cases bail has been granted; and in how many cases persons have failed to surrender to bail and in connection with what offences?The reply was:The information is not readily available but I will write to the hon. Member as soon as possible."—[OFFICIAL REPORT, 16th April 1973; Vol. 855, c. 57.]It may well be that the cases in which these clauses seek to increase the rigours of bail are justified, but if so that evidence should be available and produced. This should not be a matter we have to try to search out by question, to receive the answer that there is no evidence to support it.
Next we come to the question of detention. The arguments against detention may be summed up in three phases —secret trial, hearsay evidence and indefinite sentence. "Ah", say the Government, "but this new wonderful system of commissioners and appeal tribunals is working splendidly." One then says, "We are very keen to know just how well is it working. Can you tell us in how many cases evidence has been given when the respondent has not been present? In how many cases has the commissioner not been informed of the origins of the evidence? In how many cases, for example, has the respondent refused to recognise the authority of the court?" The answer is, "we have no evidence. All these trials are held in private". One cannot continue to legislate seriously in this way. The Bill goes to the very root 359 of the civil liberties of United Kingdom citizens but, more than that, it goes to the root of the problems in Northern Ireland.
The Government have not replaced the Special Powers Act for all the fancy title and all their alleged parliamentary supervision. They have not got rid of the causes of minority irritants, and the fact that those irritants are now being applied to some of the majority justifies them not one little bit.
The Government will not solve a situation and create a new era in Northern Ireland with all the hopes in the White Paper fulfilled when, before the Bill is published enumerating the human rights, they produce legislation making their application to derogate from the Charter of Human Rights of European Convention the first item of their legislation.
§ 8.24 p.m.
§ Mr. Ian Percival (Southport)
The hon. Member for Accrington (Mr. Arthur Davidson) was right to draw the attention of the House to the fact that we are making not just small changes in our law if we accept the Bill. The extent to which it extends effects major inroads into very important principles. It is right we should look that straight in the eye when we consider what we are doing. The hon. Member for Kingston upon Hull, North (Mr. McNamara) did not say many things with which I agree, but he fairly listed some of those inroads.
Most hon. Members, and certainly every lawyer, would agree with the majority of the observations made by the hon. Member for Sutton and Cheam (Mr. Tope) in so far as they were expressed as general propositions. I go further, and say, speaking generally, that many of the provisions of the Bill are abhorrent to principles and practices that most of our people, lawyers and laymen alike, hold very dear.
We all agree that these rights were hard fought for and should not be given up lightly. We all agree that, in Committee, literally the most careful examination must be given to the details of the Bill. I do not think there is one hon. Member who would not accept the proposition that we must not go any further than can be justified by those who ask the House to give them these powers. Every 360 hon. Member would probably agree that a heavy onus lies upon those who ask the House for these powers. But all of that was accepted, and not merely accepted but adumbrated, by the Secretary of State when moving the Second Reading of the Bill. As was clear from his speech then, the Government have not shrunk in any way from those or any other relevant considerations.
I suggest that tonight the House has to decide whether the onus of justification has been satisfied. I do not think I have said anything controversial so far, and I can go on being non-controversial by saying that without doubt we are all greatly indebted to Lord Diplock and his colleagues for their efforts, their researches, and their analysis of the situation. We may not agree with every part of the report, but it is unlikely that any of us would agree in toto with everything done by somebody else. We should feel greatly indebted to Lord Diplock and his collagues for what they have given us for our use in consideration of the justification.
But the Government cannot seek to rely solely upon the views expressed by an independent body—and they do not seek to do so. In his speech tonight the Secretary of State has not attempted to do that. He has also set out—possibly more briefly than he would have liked, because he had so much to cover—his further reasons for saying that. Furthermore, I suggest that to those like myself who do not profess to know, and therefore do not express a view on, what happens in Northern Ireland, comments have been made in the House during the course of the debate that, even though the temperature has been fairly cool, have tended to suggest that some such measures as this are justified. I would suggest that this is the crux of the matter: are measures of this type justified? The onus of that is clearly accepted by the Government and I suggest that they have made out their case.
I want to touch on only two other points that have arisen. I am happy to be able to agree with the hon. Member for Belfast, West (Mr. Fitt) on one point. I am sorry that he is not in his place. I never thought there would be anything on which I would agree with him. He referred to the position of the judiciary 361 in Northern Ireland. I was glad to hear the what he said about that, and what was said by the hon. Member for Antrim, North (Rev. Ian Paisley).
It is plain even at this distance that the judiciary in Northern Ireland already has a most difficult and dangerous task. It appeared plain to us that it had managed to preserve a reputation for independence in a situation where such an achievement might have seemed virtually impossible. It has done the near impossible. The burdens upon it must already be enormous. The Bill plainly places even greater burdens upon it. I am sure there is nothing controversial in expressing the hope that we shall not do or say anything tonight which could add to the difficulties or dangers faced by the judiciary in the part it has to play in the preservation of law and order in the Province.
I now turn to the question of the inroads made by the Bill into, or the limitations placed by the Bill upon, the jury trial. Some hon. Members have spoken as though we were taking the first step towards the abolition of jury trial in all cases, and that we had gone a considerable distance in that direction. I believe that is an exaggeration of what is being done. Of course there is a danger that the temporary may turn into the permanent, and I am sure that the House is as glad as I am to see that the provisions expire after 12 months unless they are renewed. That is the best evidence a Government can give that they intend the provisions to be temporary. If and when the time comes for the Government to seek renewal of those powers the House must assess whether the onus upon the Government to justify that extension has been discharged by them. But at least for the moment we have the best evidence that the Government mean what they say about the powers being temporary.
Of course, we must ensure that the limited does not become less limited as time goes on—but that is what we are here for. If someone seeks to widen the scope of these powers it is our job to do our utmost to see that there is no widening unless the onus of justification is discharged.
I suppose that those who are proud of the part played by juries in this country take the greatest pride in the part played by them in the trials at the 362 beginning of the last century, when people were put on trial for expressing their view. We rightly take great pride in the part played by juries and advocates who took part in trials like that of Thomas Paine.
§ Mr. Percival
If anyone were to come to this House suggesting—does the hon. Member wish to intervene?
§ Mr. McNamara
I think I can see the type of argument which the hon. and learned Member is seeking to advance. I believe we can take pride in the fact that juries can also convict the Krays and the Richardsons.
§ Mr. Percival
Perhaps the hon. Member will allow me to complete my argument. Then he will be able to see whether it coincides with what he has in mind. I was saying that as well as taking pride generally in the work of the juries, the aspect in which most of us probably take a special pride is that demonstrated by the trials of the early nineteenth century, when juries refused to convict a man for expressing his political views, however extreme they might be. It was only in those years at the very beginning of the century the juries and the advocates who had the courage to do their duty who stood between the freedom of a man to express his political views, whatever they might be, and prison. If any Government asked the House for powers which entailed the slightest inroad into that principle they would get very short shrift. But this Bill does not make the slightest inroads into that principle. Any man who pursues his political convictions—however extreme they may be and whatever they may be—by peaceful and democratic methods has the full protection of the law, the jury and the advocate as we have seen them in action in Northern Ireland.
It is just as well to remember that the Bill does not do. It does not make the slightest inroads into that principle, nor does it make any inroads into the trials of the Krays, the Richardsons, or people like them, for ordinary criminal offences. —if that is not using inexact phraseology. If they are indictable and triable by jury now, such offences will remain indictable 363 and triable by jury, save those which are scheduled. Let us examine the schedule before we express too extreme views about it. The only cases in which the right to trial by jury may be taken away arc cases of sheer thuggery—and the right is not even taken away in all those cases —because we see from the notes which appear to the schedule that the intention plainly is that sheer thuggery of the ordinary criminal, run-of-the-mill stuff—including murders of a kind which one would not in any way associate with terrorism—will go on being tried by jury, as in the past.
I agree with the hon. Gentleman who has said that even though it is as limited as that we have a clear duty to give most careful consideration, for example, to provisions such as that contained in Clause 1(3). At the moment I, too, am inclined to agree with my hon. and learned Friend the Member for South Fylde (Mr. Gardner) that it is dangerous for us to leave any room for scheduled and non-scheduled offences to be tried together. That is the view which I hold at the moment. No doubt this question will be discussed in detail in Committee. I am sure the Government will then take the view that it is for them to show that that is justified. At the moment it is not easy to see how it could be justified.
I accept that even though the effect is less wide than some hon. Members have suggested, we have in the short term the duty to see that every possible safeguard that is consistent with taking this kind of step is observed. But in the long term the answer lies with those who will persist in thuggery or terrorism, whichever one cares to call it.
Sometimes we overlook the reason why we are having to do this at all. It is— is it not?—largely because those who now profess to hold so dear the rules upon which this Bill impinges so much themselves refuse to obey other rules which are equally dear to the rest of us—and, in particular, the rule which says that we will not tolerate the prosecution of political ideas by thuggery and intimidation. The minute people desist from that kind of action these measures will become unnecessary. Many hon. Members on both sides of the House would then be ready to nudge the Government—if the Government needed nudging—to get rid 364 of these powers. But unless and until those who are induging in violence and intimidation desist, they must understand that we will not shrink from taking whatever measures are necessary to deal with them, however unpalatable those measures may be. The Government have established their case for such powers at this moment.
§ 8.41 p.m.
§ Mr. A. E. P. Duffy (Sheffield, Attercliffe)
The hon. and learned Member for Southport (Mr. Percival), like some of his hon. Friends, finds the Bill abhorrent but in discussing parts of it he said, in order to console himself, that this was an emergency and therefore emergency legislation was called for. He reminded us also that the Bill is subject to yearly supervision. He did not meet the point, advanced by my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara), that the Bill still has internment at is heart. Internment, therefore, is to remain, if with some modification. I put it to the hon and learned Gentleman that a Bill of this nature is not merely abhorrent to lawyers but should be unacceptable to them and to the British House of Commons.
§ Mr. Percival
Is the hon. Gentleman saying that in no circumstances is any measure like this justifiable?
§ Mr. Duffy
Not internment. I understand the hon. and learned Gentleman's difficulty. I was especially interested in the refinements he put forward, but the Bill still provides for non-jury trials in certain circumstances. It still provides for bail, but in certain circumstances getting bail will be difficult and in others impossible. It will provide for written statements to be admissible as evidence in lieu of court appearances in certain circumstances. It will also provide, in cases involving firearms, for the onus of proof to be shifted directly to the defendant to prove his innocence.
My hon. Friend also reminded us that planted evidence is not unknown in this city, let alone in Belfast. As the hon. Member for Antrim, North (Rev. Ian Paisley) reminded us, the Royal Ulster Constabulary, the British Army and the Ulster Defence Regiment are given powers to stop anyone, who will then be liable for prosecution if he fails to disclose information about… any … incident endangering life …365 But I can quote from Press reports of current activities in Northern Ireland, quite apart from the information I get in my post or which is otherwise conveyed to me from Northern Ireland, to show that these provisions mean further opportunities for harassment which can have only a one-sided application and therefore smack of discrimination. They amount also to a denial of privacy and freedom that to me is every bit as serious as the similar provision in the Act that the Bill is supposed to replace.
I also object to the power of search without specific suspicion even though that search follows a murder or kidnapping, because there is much too great a potential for misuse. Indeed, the power is to be available to quite junior officers to impose a virtual curfew. I hope that we may hear further words about this. We should be addressing ourselves to the causes and not to the effects.
I echo what has been said from the Opposition benches about civil rights legislation. Why could it not precede a measure of this kind? That is my direct answer to the hon. and learned Member for Southport. Why not produce civil rights legislation first and then define the circumstances and the occasions when it will be derogated from?
The Schedule contains a list of proscribed organisations. I and my hon. Friends have always accepted the Secretary of State's proposals and policies, but I put to him that, whatever his intentions, this list will appear to many to smack of sectarianism. What of the UDA, for example? Does the Secretary of State believe that it is wholly a political organisation?
The British have ever been disposed to coercive legislation in Northern Ireland—with what result history makes abundantly clear. As we saw at Question Time this afternoon, Conservative Members of Parliament are still too uncritical of the rôle and therefore the conduct of the forces of law and order. They purport to protect the troops, but when will they see that their policies are prone to condemn and to continue to condemn those same troops to the frightening vulnerability of Ulster? They aspire to a political solution, but when will they see that only the keenest surveillance of the forces of law and 366 order will ensure the promotion of conditions conducive to the success of the White Paper? Such attitudes suggest to me a lack of balance.
The powers that the Government seek through the Bill are not only the denial of natural justice but are powers that a Conservative Government are peculiarly unqualified to wield. I shall have no part in granting such powers to them, and I shall vote against the Bill.
§ 8.47 p.m.
§ Mr. Edward Taylor (Glasgow, Cathcart)
I apologise for being absent at the beginning of the debate but until seven o'clock I was serving on the Scottish Grand Committee. I wish to ask only one question, to which I should appreciate a reply tonight.
The Secretary of State in opening said that the Government proposed to introduce an amendment on Report to abolish capital punishment in Northern Ireland. The practical effect of that will be small, because the Government have made it clear—
§ The Attorney-General
The Secretary of State did not say that an amendment would be introduced on Report. He said that he would table a new clause which, with the assistance of the Leader of the House, will be referred to a Committee of the Whole House and debated on the Floor of the House. The debate in Committee of the whole House will be on that clause only.
§ Mr. Taylor
I am sorry that I did not include that refinement. The amendment will not be of great practical significance because the Government have made it clear that the 1966 Act is not a practical matter in the present day.
Irrespective of the decision at which the House arrives—and in view of last Wednesday's vote it is fairly clear that the abolition of capital punishment in Northern Ireland will be agreed to—it is crucial that the deterrents which are still available to protect the police, our forces and the civilians in Northern Ireland should be as strong as possible. There should be no dilution of the present deterrents.
I should therefore like the Attorney-General to give a clear, unambiguous and unqualified assurance that, irrespective of the situation which arises in Northern 367 Ireland now or in the future, Her Majesty's Government will in no circumstances agreed to an amnesty for IRA or other criminals sentenced to imprisonment.
§ 8.50 p.m.
§ Mr. James Wellbeloved (Erith and Crayford)
I shall be exceedingly brief because I do not want to stand in the way of my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones), who is to wind up the debate from the Opposition Front Bench.
The White Paper foreshadowed the proposals contained in this Bill. Indeed in paragraphs 9, 19 and 60 of the White Paper the Government made quite clear that they would introduce many of the Diplock provisions and seek any other powers which in their opinion were necessary to contain the situation in Northern Ireland. That was one of the reasons why I and a handful of other hon. Members voted against approval of the White Paper. This Bill contains matters which if they were operated, as indeed they are operated, in other countries would be roundly condemned by my hon. and right hon. Friends.
Clause 19 deals with being in possession of information relating to the police or the Armed Forces which could be of use to a terrorist. It will be a crime subject to arrest and subject to all the penalties contained in the Act. Clause 23 lays it open for the Government to take sweeping powers at their discretion. Clause 28, which governs the operation of Clause 23, means that at least for 40 days those sweeping powers can be put into operation purely at the say-so of the Secretary of State.
We have condemned the operation of such measures in Turkey, Greece, Portugal, Czechoslovakia, the Soviet Union and many other countries. I will not be a party tonight in support of them in a part of the United Kingdom. I hasten to add that it is part of the United Kingdom which in my view ought not to be part of the United Kingdom.
This is the whole dilemma with which we are faced. Wherever in the world a territory has been held by military force against the consent of the people, the governing body is inevitably forced to rely upon these unacceptable measures. 368 This is precisely the position in Northern Ireland. It is being held without the consent of the British people because this Government and their predecessors have never given the British people an opportunity to express themselves on the continuation of Northern Ireland as part of the United Kingdom. It is being held without the consent of the Irish people because it is held without the consent of the Republic and without the consent of a very sizeable proportion of the people of Northern Ireland itself.
Because we are faced with a continuation of that tragic mistaken policy, British soldiers are being required to carry out an impossible task and many of them to be brutally murdered in so doing. I regret that my hon. and right hon. Friends did not declare themselves against the White Paper. I condemn anyone who now nit-picks on this or any other Bill which comes before the House as a result of the White Paper. The time to have stood up and be counted against this and other measures was on the occasion when the White Paper was before the House.
We should not be hypocrites about this matter—and this applies particularly to Opposition Members—and I do not think that we have the right to put into operation in Northern Ireland those things which we have rightly condemned in other parts of the world. Therefore, I shall vote against the Bill tonight as I voted against the White Paper which foreshadowed this measure.
§ 8.55 p.m.
§ Sir Elwyn Jones (West Ham, South)
It has been broadly agreed in this vigorous and admirable debate that the problems to be faced in Northern Ireland are more political, and, possibly, military, than legal. With the exception of some of my hon. Friends—such as my hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved) with his usual vigour—we have broadly supported the Government, and particularly the Secretary of State in his attempt to find political and military solutions for Northern Ireland. Nevertheless, the major breakdown of law and order in Northern Ireland, the continuance of murders both political and sectarian, and the massive use of explosives—all these matters justify the taking of special 369 measures while the state of emergency continues.
My hon. Friend the Member for Belfast, West (Mr. Fitt) conceded that in this emergency some kind of action would be required, and it may well be that in due course we shall hear from him about his ideas for dealing with this grievous state of emergency.
As I see the situation, the real issue that has emerged in the debate is whether, in the Bill, the Government have over-reacted to the emergency situation and whether they have given the Executive in Northern Ireland powers which exceed what is necessary at the cost of serious infringement of human and civil rights and liberties. If so, the respects in which it docs so will have to be eliminated in subsequent stages of the Bill.
Clearly, this debate has shown concern among Members on both sides of the House about many of the Bill's provisions. The Committee stage will be long and arduous and will add even more to the burdens borne by the right hon. and learned Attorney-General. He bears his burdens with cheerfulness, though I venture to think that his job was hard enough even before he assumed responsibilities for Northern Ireland. I hope that I may be forgiven a personal note in saying that I join with the Secretary of State in his observations about the Attorney-General's contribution.
At present reliance is placed on two ways of dealing with those accused of terrorist crimes in Northern Ireland. First, there is detention under the provisions of the Detention of Terrorists (Northern Ireland) Order which was approved by Parliament in December last and, secondly, trials in the ordinary criminal courts of Northern Ireland. The Detention of Terrorists (Northern Ireland) Order was undoubtedly an improvement on previous internment arrangements, looked at from the point of view of the rights of the detainee, because there are provisions for a hearing before a legally qualified and independent commissioner and a subsequent right of appeal to an appeal tribunal. We are glad to have the figures because they indicate that this is no idle benefit to detainees. Nevertheless, the procedure combines the continued process of secret trials with the continued admission of evidence and 370 information which would not be admissible in normal court proceedings. Furthermore, internment, like the Special Powers Act, historically had become a symbol of Catholic grievance.
I have little doubt that these factors led the Government to set up the Diplock Commission. The terms of reference of the Commission were to consider:what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book, otherwise than by interment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do not necessarily take part in, terrorist acts; and to make recommendations".So it was clearly envisaged that arrangements could be made to deal with terrorist organisations other than by internment by the Executive.
The Diplock Report recommends not only that internment should continue; it combines it with new court procedures which exclude many of the safeguards which have been built into our criminal procedures over the centuries, or at least the decades, to try to ensure that innocent persons are not wrongly convicted.
In replying to this debate it will be the Attorney-General's task to satisfy the House that both sets of special powers are necessary. As was admitted by the Secretary of State in opening, the burden of proof rests fairly and squarely upon the Government. There has been a great deal of rhetoric, but very little evidence has emerged in the course of this debate. I hope the learned Attorney-General will condescend to particulars when he replies.
I confess that I see a great deal of force in the dictum, in paragraph 15 of the Diplock Report, that unless the State can ensure the safety of witnesses and protect them against risk to their lives, their families, or their property, it will be unreasonable to expect them to testify voluntarily and morally wrong to try to compel them to do so. Is the Attorney-General satisfied that the assumption cannot be made that the State in Northern Ireland can protect witnesses in that way? Can he substantiate that view? We should like some information from him about that.
371 I ask the further question whether, in coming to the decision to intern detainees, the Government adequately weighed in the balance the hatred of detention that has been expressed many times in the course of this debate. I ask whether the Government have weighed sufficiently the damage that its continuance may do to the prospects of a political settlement.
When we consider the details of the provisions in the Bill regarding detention we see that, as my hon. Friend said in opening for the Opposition, it is at least a good thing that the order is now in the Bill in the form of Schedule 1, because in Committee it will enable us to examine each aspect and amend it wherever it may be necessary.
When the order was debated in the House in December many criticisms were made of its terms. I am somewhat disappointed that little regard seems to have been paid to them, because, with some satisfactory exceptions, it is true—such as the power and duty of review—many of the provisions that were criticised in the debate on the order remain in the Bill. I mentioned the power which, in paragraph 11(2) of the Schedule, is given to the Secretary of State to make an interim custody order which can result in a person's detention for as long as 28 days. In that time there is no room for any kind of external, judicial or independent intervention. That is an out-and-out executive power lasting for as long as 28 days.
§ Miss Devlin
Is the right hon. and learned Gentleman aware that the actual period is much longer than 28 days— that at the expiration of 28 days one is merely given the papers to appear before the commission, and that the average period is six weeks?
§ Sir Elwyn Jones
As ladies sometimes do, the hon. Lady has anticipated what I was about to say. I was about to add that the order contains no provision to limit the period of time within which the case must be referred to the commission, nor is there a limit to the period within which the commissioner must come to his decision. Nor, as I understand it, is there a limit to the time which the Detention Appeals Tribunal is given for the adjudication of the appeal. If the Attorney-General has the information 372 available, it will be interesting to know how the time factor has operated at the taking of these various steps in the internment processes.
I should also like to ask the right hon. and learned Gentleman whether, once a Minister has signed the interim custody order and it is left to the chief constable to decide whether and when the case should be referred to the commission, the Minister ceases to have further contact with the case. In other words, does it pass wholly into the hands of the police? As I have said, it is true that we now have provisions for review in paragraph 35 of the schedule. That is clearly a welcome feature. But while that exists the terms of the schedule retain that which was criticised when the order was before the House, namely, the power of the Secretary of State to recall the detainee under the old Article 9(3) which is now to be found in paragraph 36(3) of the schedule.
This power of recall is a serious one. We should not like what was described by my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara) in December as "the cat and mouse method"—the in-and-out method —to be practised. Here, in regard to the power of recall, there is no indication of a duty or a right of reference to a commissioner in the event of recall, or of a right of appeal in the event of the commissioner's deciding that the recall of the detention order should stand—if, indeed, the commissioner has the power to decide that matter. I should like to know from the right hon. and learned Gentleman the extent of the use of this power of recall since the terrorist order created the power.
I should also like an assurance from the right hon. and learned Gentleman that legal aid will be available for proceedings before a commissioner. In the view of the Opposition it should also be available on appeal and recall procedures, and free legal advice should be given as to the review procedures.
Having heard the eloquent account given by the hon. Member for Antrim, North (Rev. Ian Paisley) about the goings on at Long Kesh and about the proceedings before the commissioners, I hope for some reassurance from the Attorney-General. The hon. Gentleman's description created a situation of part farce and 373 part tragedy. I hope that we shall get some reassurance about the treatment not only of the detainees but of the lawyers in the course of the proceedings.
I understand that some leading members of the legal profession in this country sit as commissioners. I hope that we can be reassured that these proceedings, which we commended as giving additional rights to detainees, have not gone sour in practice.
So much for the problems relating to the detention provisions of the schedule. I now turn to Part I of the Bill. The fundamental changes in procedure have been described from the Government benches as unpalatable and from the Opposition benches as contemptible and unacceptable. When the right hon. and learned Gentleman addressed the House in December on the Detention of Terrorists (Northern Ireland) Order, a promising account was then given to the House of the working of ordinary court procedure. We were told that out of 72 persons dealt with through the ordinary criminal courts in Belfast in a period of seven weeks for terrorist-type offences, only six were acquitted by juries. On the strength of that information my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) asked the Secretary of State:Does not that indicate that normally these cases can be dealt with satisfactorily through the ordinary criminal process, and will he undertake that no one will be dealt with under the Detention of Terrorists (Northern Ireland) Order unless there is reason to believe that he cannot be dealt with by the ordinary processes of the law?The right hon. Gentleman replied:I give that undertaking completely. As I think the hon. and learned Gentleman appreciates, a number of people have been charged with firearms offences and other terrorist offences in recent weeks and months. This is a very satisfactory development."— [OFFICIAL REPORT, 14th December 1972; Vol. 848, c. 599.]What has happened since then to throw such apparent discredit on ordinary criminal procedures in the courts? Is the cause the appearance of the wisdom of the Diplock Report and the recommendations of that report? The House will want to be satisfied that there is more than that to justify what is proposed in the Bill. We shall want a clear statement from the Attorney-General about what has happened in the meantime to call for these radical changes.
374 While we admire the quality and the industry of those who prepared the Diplock Report, their recommendations do not seem to suffice without abundant confirmatory evidence that what they recommend should come to pass. I cannot emphasise too much that it is vital that the changes required to deal with the emergency situation in Northern Ireland should not be such as to cause loss of confidence in the strict and impartial administration of justice in Northern Ireland. It is imperative that the judiciary should not be or appear to be an arm of the Executive. It will be a deplorable day if that fear and belief develops in any part of the United Kingdom. In several respects, some of the proposed changes in the Bill have gone too far in diminishing the classic protections normally available in our criminal courts to an accused person, and we seriously fear that unless they are amended they could harm the judicial system itself.
I find somewhat ominous the observation on page 5 of the Diplock Report:It does not fall within our responsibilities to recommend changes in the general criminal law or procedure of Northern Ireland. That would require longer consideration and wider consultation than the urgency of our task permits. It would in any event be better fitted to be undertaken by a more broadly constituted body than ourselves.It goes on:This does not mean that changes which we propose for dealing with terrorist activities during the emergency are regarded by us as unsuitable for general application to all criminal offences in normal times.That kind of approach has caused concern to many of us. We feel that there is long-term danger in the Bill, in that it may prove irreversible and that the Government may be tempted to extend some of these ideas to the United Kingdom as a whole. However, at this stage there is a 12-month limitation and the Bill's provisions cannot continue beyond that without the Government having to secure approval of the House. I agree with my hon. Friend the Member for Leeds, East (Mr. Merlyn Rees) that six months would be a clearer indication of the temporary quality of these provisions.
There is no time to go into the detail of the provisions to alter the criminal procedures of Northern Ireland, but I share the anxieties about Clause 1. I listened with admiration to the eloquence of the 375 hon. and learned Member for South Fylde (Mr. Gardner) about the jury system of this country. We have traditionally regarded it as the Palladium of our liberties. It has served the citizen well against the tyranny of executive power. The seven bishops must be remembered when it is proposed to give it up, even in conditions of emergency. Indeed, it is a grave step, and I ask the question that has been asked many times today—is the abandonment of this right of the subject justified by the available evidence?
The working of the jury system and the right of challenge in Northern Ireland is a curious and remarkable spectacle to behold. I had the pleasure of undergoing it myself when I appeared some years ago for certain gentlemen in a grave and tragic case when two men were charged with the murder of a police sergeant. My instructing solicitor challenged everyone called Jones, Evans, or Smith, who was presumably a non-Catholic manifestation, while the learned Attorney-General challenged every O'Driscoll and O'Flaherty who was called to be sworn.
§ Sir Elwyn Jones
The right hon. Gentleman says, "There you are," but, at the end of the day we got a jury, and the jury acquitted—on the evidence in the case. I had little part in it: it was an admirable jury. So I will have nothing said against the juries of Northern Ireland. They served me in very good stead, to say nothing of my clients.
Seriously however, the evidence in the Diplock Report does not justify what is now proposed. What is said in paragraph 35 is very curious and can give the Government little comfort, bearing in mind that they propose that these trials should be conducted by one judge alone.
Paragraph 35 says:Hitherto serious terrorist crimes … have been all tried by jury. It is fair to say that we have not had our attention drawn to complaints of convictions that were plainly perverse and complaints of acquittals which were plainly perverse are rare. But an important factor in the absence of perverse convictions has been the readiness of the judge in Northern Ireland, even before the present emergency, to withdraw the case from the jury if he himself has any doubt as to the guilt of the accused. This power appears to us to have been exercised in recent months in Northern Ireland much more widely than it would be by any 376 judge in England. In cases in which it is used its effect is to substitute for trial by jury, trial by judge alone.I am not quite clear about the thinking behind that, and whether there is complaint that the judge alone is not doing his job in Northern Ireland. If that is the complaint, it is odd that he alone should be given the job in the Bill and that it should be taken from the jury.
§ Mr. Gardner
Would not the right hon. and learn Gentleman agree that it is quite clear from the paragraph he has quoted that what Lord Diplock and his Committee were saying is that the judge is exercising the right, which judges exercise in this country but not so frequently, to withdraw a case from the jury when he believes that the jury would come to a perverse verdict of guilty?
§ Sir Elwyn Jones
I do not know whether Lord Diplock means that. If he does, the judge would get into a bit of a mess, as we have seen from a recent case at the Court of Appeal and at the Old Bailey. Perhaps that is the explanation. It may be intelligent anticipation that a perverse verdict is about to be given. It is a very remarkable procedure if that is so. It is a usurping of the jury's function by the judge. I doubt whether that is the explanation. However, there it is.
The end of the matter is that the most that can be said in the report is thatThe jury system as a means for trying terrorist crime is under strain. It may not yet have broken down, but we think that the time is already ripe to forestall its doing so.The House is entitled to be told unequivocally by the right hon. and learned Gentleman whether the system has broken down to the point where it is contrary to the interests of justice that the jury system should continue. The interests of justice require concern not only for the fairness of the trial but care to see that serious crime is detected and punished. But the necessary evidence does not seem, to most of those who have spoken on this issue in the debate, to have been forthcoming.
On the proposal that the trial should be by a judge alone, I entirely agree with what was said by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke). It puts too much of a burden on the judge alone. He should 377 be assisted by two assessors, or there should be three judges to try these issues.
I greatly hope that the Secretary of State's proposal that the death penalty shall go will prevent what would otherwise be an intolerable situation arising of a single judge having to decide a capital offence. But even without that state of affairs, the criticisms that are made in the report of the delays that will occur by a collegiate trial are not sufficient to justify imposing this burden on a single judge. As has been said, if the situation requires the appointment of more judges in Northern Ireland, I and the right hon. and learned Gentleman the Attorney-General know that, fortunately, there are men of competence at the Bar capable of doing the job.
Clause 2 has been much and properly criticised because of the considerable restrictions it imposes upon the granting of bail. After all, presumably there is no attempt to abolish the presumption of innocence until guilt is proved.
I do not say that the Secretary of State complained but he said as a fact that bail is granted more regularly in Northern Ireland than it is granted here. I fear the explanation of that is that bail is not sufficiently frequently granted here. We spent a great deal of time on the Criminal Justice Bill seeking to establish certain guide-lines and principles which would result in a considerable extension of the granting of bail in this country. With respect to the Secretary of State he has, for once, got the wrong end of the stick.
In any event the limitations imposed in Clause 2 on the power to grant bail are excessive. For instance, if hon. Members will look at the provisions of Clause 2(3)(b) and (c) it will be seen that the combined effect of these subsections means that a person charged with a scheduled offence may be absolutely barred from bail for 178 days—as long as half a year. The judge has to be satisfied as to the conditions in Clause 2 which says:A judge shall not admit to bail any such person to bail unless he is satisfied that the applicant—378 If he is satisfied on those three matters it seems to me that the bail ought to be allowable without the additional requirements of Clause 2(3)(a), (b), (c), on which the hon. Member for Antrim, North had such a field day. There should also be a right of appeal against refusal of bail by the judge which does not seem to be provided for in the clause.
- (a) will comply with the conditions on which he is admitted to bail; and
- (b) will not interfere with any witness; and
- (c) will not commit any offence while he is on bail."
Alas, time has fled and I do not have the time to examine the disturbing features of Clause 4 which we shall examine in Committee. Clause 5(2) deals with the limitations to the proposal that any confession is admissible. It has to be proved, presumably by the accused, that he was subjected to torture or inhuman treatment to induce him to make the statement. These are grounds for the excusal of a confession. The limitations to this provision have been roundly condemned on all sides.
The uncertainty of the present Judges Rules' in Northern Ireland will be replaced by worse uncertainties in dealing with what amounts to degrading treatment or what will count as proof of it. Is deprivation of food, the wall treatment, forced deprivation of sleep and solitary confinement inhuman treatment? Not according to some of the conclusions of the Compton Report. This will not do, and I am surprised that it was thought that it would do. There is no reference to threats to obtain confessions or to offers of inducements, as many hon. Members have pointed out. This will obviously have to be reviewed fundamentally in Committee.
The language of Clause 6 has already been mentioned. This deals with the powers of arrest without any saving words such as "reasonable grounds for suspicion" which govern the exercise of such powers by police officers in this country.
§ Miss Devlin
In view of my right hon. and learned Friend's arguments I am a little perplexed as to how he can so eloquently and with such principle demolish so completely the arguments from Government supporters and then fail to vote against the Bill tonight.
§ Sir Elwyn Jones
I thought I had made clear that some emergency powers were needed. In our view this Bill takes the matter too far, and we propose to strive in Committee to eliminate that to which I have endeavoured to object. I conclude 379 by saying that as far as the announcement made by the Secretary of State with regard to the abolition of the death penalty is concerned, I will certainly support it on its merits and because of the intolerable situation that would flow if the death penalty were retained in one part of the United Kingdom and abolished everywhere else. I will not go into the merits of it now. I will content myself by saying that in all the Western Christian democracies the death penalty has virtually disappeared; and it has been abolished formally in most of the democracies of Western Europe. It is fitting, therefore, that in this year 1973 it should also go in Northern Ireland.
§ 9.31 p.m.
§ The Attorney-General (Sir Peter Rawlinson)
I should like first of all to thank the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) for his personal reference at the start of his speech. I am glad that he managed to get in a very considerable "puff" for his own skill with juries, which apparently he demonstrated in that case long ago in Northern Ireland.
I join him and my hon. and learned Friend the Member for South Fylde (Mr. Gardner) in devotion to the principle of trial by jury as being an important and indeed integral part of criminal administration in times of normalcy. But in Northern Ireland, as anybody knows who has had much responsibility there over past months, this is not a time of normalcy. The recommendations which are brought forward in this Bill to which we are inviting the House to give a Second Reading this evening, as my right hon. Friend the Secretary of State made clear in presenting it to the House, deal with grave and serious matters all of which need and call for careful consideration by this House when the House takes this Bill, as I hope it will, into Committee.
It is based on the recommendation of the Diplock Commission. The members of that Commission were not—as it seemed to me the hon. Member for Accrington (Mr. Arthur Davidson) was suggesting—capricious people. In fact, they examined this matter carefully but expeditiously in the autumn of last year. The noble and learned Lord, Lord Diplock, alone went to Northern Ireland, 380 but he heard the opinions and saw many people in addition to those who came to see the Commission here on this side of the water.
Lord Diplock is not a man who would be slow to uphold the principles of law; nor would Professor Cross, one of the most distinguished legal academics of the present time and a most distinguished writer on the law of evidence. He would not be quick to alter the laws of evidence so as to affect and alter justice or the interests of an accused person. Sir Kenneth Younger, who many of us recollect in this House, was formerly a Minister at the Home Office, and I recollect him many times standing at the Dispatch Box on behalf of the Opposition, speaking with great vigour of the civil liberties and interests of the individual. Nor would one think of Mr. George Woodcock—certainly I would not think of him—as a person to be prejudiced over the rights of particular groups of people in Northern Ireland.
These are the people to whom we looked for this report, who made it and presented it to my right hon. Friend. But as my hon. and learned Friend the Member for Southport (Mr. Percival) said, it is not only of those gentlemen, their report and their recommendations that this House would care to hear. Perhaps it would care to hear about my personal experience—having had the ultimate responsibility for prosecution and having been directly answerable for the Director of Public Prosecutions and the Deputy Director of Public Prosecutions in Northern Ireland, and for the report, for which obviously hon. Gentlemen have been asking—and as to the impression which I have gained over the administration of criminal justice, particularly in the last few months.
Four matters concern the Director of Public Prosecutions, the Deputy Director and myself—first, the intimidation of jurors; secondly, verdicts and jury disagreements running—I put it no higher-contrary to the evidence; thirdly, the intimidation of the witnesses; and fourthly, the substantial number of cases obliged to be abandoned because of technical difficulties.
I deal first with the intimidation of jurors based on the reports from the area officers of the Director of Public 381 Prosecutions who attend the courts round the Province in the criminal cases which, when the Bill becomes law, as I hope will be the case, will become scheduled offences.
The following are some of the examples of what we have encountered recently in the courts. There have been visits by the IRA to the homes of a number of jurymen warning them not to convict in IRA cases. There is the case of a garage proprietor, one of a jury which convicted an IRA bomber, who received a heavy sentence. Subsequently that juryman's garage was attacked by bombs three times and finally totally destroyed. It is not unexpected, hon. Members may think, that owners of businesses in the area are now reluctant to serve on juries and, if they do so, reluctant to convict.
There is the case of the UVF man-that is the other side—up for trial where a bomb was exploded in the corridor of a courthouse and one witness had to be kept in police custody the whole time pending the trial of that man.
It is a tactic of both the IRA and the UVF to pack the court with their bully-boys when one of their number faces a serious charge. The effect on the jury, and on the witnesses, of such a packed court and such a packed audience can perhaps be better understood in the atmosphere of Northern Ireland than here in this Chamber this evening. The spectators sitting there, the UVF or IRA, are people who flinch at nothing, for their success depends upon the degree of fear that they can, and do, inspire.
The case was reported to me in Armagh of the IRA men who visited the homes of a number of jurymen and warned them not to convict to such an extent that consideration had to be given to the removal of the whole Assize to Belfast.
In Armagh there were four verdicts of not guilty in cases brought against UDA men. In one case, a man was found in a car with a gun—the result of the case, acquittal. In another case, three men were seen throwing a gun from a car which was being pursued by an Army patrol—result of the case, acquittal. In another case involving the hijacking of a lorry, the cargo was found in a UDA club and the documents were in the handwriting of the accused—result of the case, 382 acquittal. In another case, a leader of a UDA unit was identified as taking part in the armed robbery of a Post Office— result of the case, acquittal. In yet another case, a man was found with an unlicensed gun—result of the case, acquittal.
These are reports I have received through the staff of the Director of Public Prosecutions. These verdicts appear to them, and to me, to be contrary to the evidence.
There are cases where the accused has made a clear admission to the police after caution. There are acquittals and jury disagreements following the assertion by the accused in an unsworn statement from the dock that the admission had been made under duress, with no opportunity to test the truth, by cross-examination because the accused never entered the witness box. Yet that was "accepted" by the jury.
§ The Attorney-General
If the hon. Member for Sheffield, Attercliffe (Mr. Duffy) will forgive me, I shall make my speech in my own way as I have a great deal to say and I would welcome the chance to say it.
There are cases in which the validity of an admission of the offence which has been made to the police was not even contested by the accused at the trial. Yet despite such an admission by the accused, and no rebuttal at the trial, the result of the case was acquittal. There are instances, of course, where the accused has refused to recognise the jurisdiction of the court and has made no submission at the trial. These are examples of cases which I say can be explained only as verdicts given in the teeth of the evidence.
The jury system to which we have all been paying tribute depends upon the random selection of men and women who take an oath to return their verdict according to the evidence. That is what they swear. That is the oath binding upon them. There are two reasons for this betrayal of the oath. One is prejudice, or the determination of the jurymen and women to look after their own. 383 The second is fear. The most common at the present time is fear, but I ask the House not to overlook the first.
Obviously the evidence of intimidation must be hard to come by. Intimidation ensures that it is unlikely that there will be any witness to the intimidation. The whole essence of the crime of intimidation is that it should be carried out in secret and backed by the certainty that the threat will be carried out. Both are equally effective in Northern Ireland today and no one doubts that a threat so given will be honoured.
During the course of the debate some hon. Members have been talking about the selection of juries. Perhaps I should make the position clear. In a criminal trial in Northern Ireland the defence has 12 challenges for each accused person. If there are three or four accused, there could be 48 challenges of the jury by the defence. The Crown stands by only if it is to protect the juror, that is, for instance, if he lives in a disturbed area or if his business takes him into that particular area. Perhaps the House will recall the Derry case of the man with the garage. The area staff of the Director of Public Prosecutions is instructed that religion alone shall not be a ground for challenge and the Deputy Director of Public Prosecutions personally ensures this in Belfast.
But of course those are not the only risks and apprehensions facing jurors in Northern Ireland. The actual burden is so much greater than in England, however. The Winter Assize Panel had to attend continually from 15th January to 18th March. And the Londonderry Panel will have to serve twice in one year. In England the average period of service is four to five days and perhaps 10 days at the Old Bailey, and it is very rare for a person in England to be called upon again to serve upon a jury.
Unlike England, the majority of civil trials are conducted with a jury and the number of inquests has increased enormously. In the prevailing circumstances the burdens and fears of people in Northern Ireland who are compelled to serve on criminal juries are very great, and unless and until conditions are restored in which a person can return a verdict without fear or favour and in 384 accordance with the evidence then, as I personally regret, but as I am personally convinced, there must be suspension of jury trial for terrorist offences.
If that is so, certainly the issue whether the prosecution has proven its case so that a verdict of guilty can be brought in by the court will fall upon the judge. The House has quite clearly made its opinion known this afternoon in the speeches that have been made. There is no illusion about what this means or about the responsibility it imposes upon the judges. It will impose a very heavy burden. I see these men daily and I know them to be men of character and integrity applying the law with such rigour against the prosecution and against the Crown in interpreting what they have to interpret, which is the law of Northern Ireland.
They have their dangers, and it has already been pointed out what happened to Mr. Staunton, the resident magistrate in Belfast. He was gunned down. There have been bomb attempts on three or four others of both denominations. In Northern Ireland there are eight High Court and nine county court judges, including the Recorder. According to the Diplock Report the number of judges there makes it impracticable to have trial by a plurality of judges for all these offences.
I listened with great care to what my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) said. But if there are to be five or six criminal courts, as one would hope there could be so that persons could be brought to trial reasonably swiftly, and if there are to be three judges sitting on all these cases, there will have to be a vast increase in the number of judges or the delay of trials will increase to even more than it is with trial by jury. Diplock thought that a system of trial if there is to be no jury is better by one judge alone. The noble Lord Gardiner in another place suggested assessors, but they experience the same danger as, and perhaps even more, than a jury. Of course, there is the procedure of appeal to a court of appeal consisting of three judges.
Sectarian accusations might be made if a judge sits alone. But it has been pointed out that in many cases, particularly in Northern Ireland, the result of a trial 385 often turns on whether a statement or confession is ruled admissible by the judge. Often on his sole ruling does a verdict turn. In many cases judges have made that ruling and there has been no serious criticism of the senior judiciary. Therefore, I hope that, save in extremist circles, judgments will be accepted. I expect, as did the Diplock Report, that in such circumstances the judge would give, if shortly, the reasons for his verdict.
I now turn to the intimidation of witnesses. Whereas the intimidation of juries is directed to the result of a trial and can be cured by altering the method of trial and dispensing with juries, the intimidation of witnesses is directed to preventing any trial ever being held. I ask the House to bear this distinction in mind. Justice calls for the conviction of the guilty. It is not justice if the guilty are acquitted by an intimidated jury.
In one police division—there are 16 in Northern Ireland—between March 1972 and March 1973 there were 210 armed robberies and 224 hijackings. In the majority of these cases the injured parties stated that they did not want to be involved in court proceedings. Hijacked drivers are frequently warned that they and their families will suffer.
During the past year there has been positive evidence of direct intimidation in 30 cases. I will give some examples from the past 18 months. In October 1971 three company employees were told that they would be shot if they gave evidence. The company's premises have since been twice bombed and are now destroyed. In January 1972 the bus driver witness, Sydney Agnew, was shot dead at home in the presence of his child on the day before the trial of three terrorists. In March 1972 a woman witness received a bullet in an envelope which is believed to have brought on a heart attack.
In February 1973 a witness's shop was severely damaged and looted, and he was told that the attack was a warning. The case had to be abandoned. In March 1973 a person called at the home of the parents of a murdered man, left a bullet, and warned them not to give evidence. In this very month a man declined to identify the man who had stabbed him saying, "I like life".
386 The intimidation of witnesses and their reluctance to come forward has not decreased. With the rise of Protestant violence it appears to be increasing.
I should remind the House of figures for arrests in the last few months among the majority and the minority of the community, referring to the majority as representing one side and the minority the other. In November 1972 from the majority community only 32 persons were charged, whereas from the minority 56 were charged. In December, 55 from the majority were charged, whereas 60 from the minority were charged. In January 1973, 60 from the majority were charged and only 49 from the minority. In February there was a swing the other way: 89 from the minority and 51 from the majority. In March, 81 from the majority were charged and 98 from the minority. In April, 31 from the majority community had been charged and 35 from the minority. So the situation has altered in the last few months. This is the reason for the gravity with which the situation is regarded by those in charge of criminal prosecutions in Northern Ireland.
I turn now to Clause 2 and those other clauses on which I have been asked many questions. I should tell the hon. Member for Belfast, West (Mr. Fitt) that during the past year 69 persons have absconded when on bail. The security forces, having arrested a person who then absconds, have to engage in dangerous operations to apprehend him again.
The right hon. and learned Gentleman suggested that perhaps bail should be granted more often in England. But persons have been released on bail in Northern Ireland who would never have been granted it in England and Wales. At present, there are persons awaiting trial charged with conspiracy to commit explosives offences in relation to the recent bombings in London. They have not been given bail by an English court. There are these opportunities to abscond in Northern Ireland, and that is the reason for the provisions of Clause 2.
The purpose of Clause 4, relating to witnesses' statements is to lessen the effectiveness of the intimidation of witnesses. The bus driver, Mr. Agnew, was shot in the presence of his child the day before 387 the trial of three terrorists in January 1972. Under Clause 4, his evidence would plainly have been adduced whether he had been murdered or not. It might have made his murder less likely, because it would have been clear that his death would not have prevented the Crown from giving his written statement in evidence.
§ Rev. Ian Paisley
I am personally interested in this case and I know the family very well. It ought to be put on record that this gentleman requested protection from the security forces and the Ministry of Home Affairs, which was then operated by Stormont, but was refused it. Yet an hour after he was shot his home was put under police guard. Those are the facts and they should be put clearly on the record.
§ The Attorney-General
As the hon. Gentleman knows, responsibility at that time lay elsewhere. I understand that the murder happened shortly after an inspector had visited Mr. Agnew's home.
Criticism has been made of the attendance proposed. But we are bringing soldiers from Hong Kong who are witnesses in order to give evidence, and we shall continue to bring such witnesses forward. But there is no circumstance of formal binding over. So in Northern Ireland this is directed towards meeting the fear of witnesses who go into hiding and will not come forward at the trial.
Clause 5 relates to confessions. I remind the House that it reflects what the Diplock Commission reported upon. Under the rules of the High Court in Northern Ireland, confessions must be voluntary to be admissible. In England the Judges' Rules were changed in 1964 but they were not changed in Northern Ireland. There, where there had been interrogation in a detention centre even where it did not involve torture or inhuman or degrading treatment—no wall standing, no hooding, no noise—a subsequent statement made voluntarily was held to be inadmissible because it had been tainted by the earlier questioning that had been made in the absence of a caution. The layman might well consider that second statement a voluntary admission, but the Northern Ireland courts held that it was not.
It could be that in the course of interrogation in the detention centre an 388 inducement was given to the suspect to tell what he knew. Under Clause 5 the prosecution can give the statement in evidence unless the accused can show that he was subjected to torture or inhuman or degrading treatment. If he does that, his statement is excluded. If it is admitted, the judge will consider all such matters as inducements or threats, and these will clearly affect the weight he gives to the statement. Of course, threats could make it wholly worthless. But the admission of a confession need not lead to a conviction. The court could well decide that the confession was false or worthless. The reference to torture or inhuman or degrading treatment reflects Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There have been 55 abandoned cases, nolle prosequis, in Belfast since the beginning of 1972, mainly because of the inadmis-sibility of confession statements.
Clause 6 deals with possession and onus of proof. The hon. Member for Belfast, West, admitting that he is not a lawyer, spoke of the shift of the burden of proof. It has shifted in the Explosive Substances Act, in the Prevention of Corruption Act, in the Coinage Offences Act and in the Theft Act. It is nothing novel. In 39 cases, somewhere explosives were discovered in a house which was shared by several people, prosecution had to be abandoned or there had to be an acquittal. None of such people had to give any explanation, and so they were all acquitted. Yet the explosives and the firearms were there. As the Diplock Report says, it is not tolerable that the scales should be weighted so heavily in favour of guilty men. That is why the new clause is to be introduced.
I give the House an undertaking that we shall not revive cases where a nolle prosequi has already been entered in respect of those matters dealt with in Clauses 4, 5 and 6.
Mention has been made of the lack of remedies open to persons who claim that they have been ill-treated by the security forces. There are 150 civil claims against the Crown and 39 cases have been settled by plaintiffs accepting payment.
There have been directions for prosecution against 37 members of the security forces on charges of bodily harm, 62 cases of unlawful shooting, malicious 389 damage and larceny, and there have been the ordinary motoring offences.
Finally, in my gallop through this substantial Bill on which I should like to have had more time to present my comments more coolly and slowly, I turn to that part which deals with detention of terrorists. Those hon. Members who see in it something evil I remind of the view of Lord Gardiner—he is not a man lightly to ignore liberty—that every State has a right, which is recognised in Article 15 of the European Convention, to take measures derogating from its obligations. That is what has been introduced by the detention of terrorists. It is not internment, and it is not the procedure which was so fancifully described by the hon. Member for Antrim, North.
As a member of the learned profession I would not refuse to be searched. Indeed, I have been searched. I have had my brief case opened in the Royal Courts of Justice. I see no reason why I should not be searched, and I see no
§ reason why any other member of my profession should not be prepared to be searched. In 65 cases defence lawyers have participated and there has been no trouble.
§ These matters are not determined by executive act. Independent professional judges will consider matters put before them. They will ensure whether the persons who are brought before them, from both communities, are persons who should be detained in the interests of the peace and security of the Province. Anyone who has borne any responsibility for Northern Ireland in the last few months knows this to be essential.
§ Draconian as these measures are, and alien as they are to many of us, I nevertheless support my right hon. Friend in saying that they are necessary.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 155, Noes 18.391
§ Question accordingly agreed to.
§ Bill read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).