APPLICATION OF PART I

HC Deb 05 July 1973 vol 859 cc735-60

(1) The provisions or any of the provisions of this Part of this Act (save those of sections 1 and 9) shall apply if and only if before or in the course of proceedings in respect of a scheduled offence a judge of the High Court makes a Part I direction, that is to say a direction that those provisions or any of them shall apply to those proceedings.

(2) Where in respect of any proceedings a Part I direction has been made, a judge may make such consequential directions as he may consider appropriate.

(3) A Part I direction may be made if and only if the judge is satisfied that by reason of duress, violence, intimidation, bribery, fraud or other unlawful conduct or the reasonable apprehension thereof the prospects of a fair and just trial are or are likely to be substantially prejudiced.

(4) A Part I direction shall not be made except upon the application of the Attorney General or a defendent and rules shall provide for the hearing of such application in private.

(5) A right of appeal shall lie against a Part I direction and against a refusal to make a Part I direction.

(6) Rules shall provide for the hearing in private of any appeal made by virtue of subsection (5) above.—[Mr. S. C. Silkin.]

Brought up, and read the First time.

4.2 p.m.

Mr. S. C. Silkin (Dulwich)

I beg to move, That the clause be read a Second time.

I begin by making it quite clear that the Opposition are as concerned as the Secretary of State and his Ministers about the violence the shootings and the bombings which have become a regular feature of Northern Ireland life. We believe also in the concept of power sharing. We believe that no legislation, no court proceedings and no judicial penalties can be as effective in reducing or eliminating the violence as the feeling of being part of a community which power sharing, if it succeeds, can give to all members of the Northern Ireland community.

However, that is for the future. I do not believe that any of us will take a view other than that in the meantime the Government must have ample power to track down the murderers and the violent, wherever they may be, and bring them to justice.

We believe that the balance of the consideration of that question was about right in the terms of reference of the Diplock Committee, which are set out in paragraph 1 on page 5 of its report. At the beginning of what we hope will be the major debate during this stage of the Bill's passage through the House, it is right that we should recall those terms of reference to They 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 internment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do not necessarily take part in terrorist acts…. I emphasise the words "other than by internment".

The conclusions of the Diplock Committee and the Bill which is before us depart radically from those terms of reference.

In considering our attitude to Part I of the Bill it is right to have in mind the existence and the provisions of Parts II and III; that is to say, the continuation of internment under a different title—that of "detention of terrorists"—though certainly more closely regulated than before, and the proscription of terrorist organisations.

That is the background against which we have to consider the system of diluted justice, as I described it in Committee, which comprises Part I. A system which many of us hoped would displace internment is to run side by side with it. Whatever happens to Part I, it will still be possible for terrorists to be detained and kept out of harm's way indefinitely under the provisions of Part II. The safety of the public will still have that safeguard. So we are now considering what more than that is needed for the protection of the public.

The Committee stage revealed a very sharp difference of approach, and it was a difference not entirely on party lines. It is that Part I of the Bill establishes a special form of justice for scheduled offences, and scheduled offences comprise a very wide range of offences against persons and property. It establishes a judicial system which I do not believe any Member of this House would accept in normal times. What is more, it goes far beyond the recommendations of the Criminal Law Revision Committee, which were so widely criticised, and which for all I know are now dead and buried.

In Committee we analysed, we tested and we examined these proposals clause by clause. We looked at each of them, and we asked to be convinced that each one was necessary, that it was necessary to set up a judicial system parallel with the normal system of justice but free from the majority of the recognised safeguards for the innocent. We sought with open, if critical, minds, and certainly the Attorney-General will recall that throughout the whole of my speech in Committee I repeatedly said "Give us the evidence upon which you justify this and similar provisions."

That was the view of the Opposition. We wanted to discover what justification there was or could be for the abandonment in scheduled cases of trial by jury—the traditional and supreme safeguard of the citizen. We asked for clear evidence of its necessity. We also scrutinised the abandonment of other traditional safeguards in respect of oral evidence, the right to cross-examine, and admissions secured by methods which in the courts of this country would render them wholly inadmissible. We tested the necessity for reversing the burden of proof—the ordinary rule that a man is innocent until he is proved to be guilty—in cases where firearms and explosives are found in the same building. in the same aircraft or even in the same ship as the defendant and where no other evidence of possession on his part exists.

Every time that we sought to discover the justification for these Draconian measures. which we still regard as wholly incompatible with the ordinary form of justice as we have known it in this country for generations, we were told "This is necessary because of fear, because of intimidation and because in the ordinary courts people are afraid to give evidence and afraid to do jury service."

To that reply, we said that these scheduled offences are the most serious in the calendar, for which men and women may be sentenced to imprisonment for life or the longest possible terms. How can we justify a system in which the more serious the offence and the more catastrophic the penalty the lower the burden of proof and the lesser the safeguards for the things which relate to it?

The Law Officers said in answer to that point that there could not be justice in the ordinary courts because of the extent of intimidation. But when we asked for proof of that assertion, proof which could emerge through the figures of convictions, of acquittals and of cases in which juries were unable to agree, we were not given them, despite the fact that the Attorney-General told us that the danger of intimidation had grown enormously since the courts had begun to deal with offenders, or possible offenders, from what is called the Loyalist side, as from about the end of last year.

What we were given, instead of those figures, were ample generalisations in exchange for our request for particularity. Many of them were not even relevant to the real issue. Some were relevant to possible changes in the system in Northern Ireland, which we have made the subject of other amendments, but they were not relevant to what we really wanted to know and be convinced about.

Even the report of the Diplock Commission did not go so far as to suggest that there was already widespread intimidation but only that that might come because illegality was now on both sides of the spectrum and not on one side only. Hon. Members have only to read what the commission said in paragraph 35 to see the force of that observation.

In paragraph 35 the commission said, in so many words: 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. The commission based its view entirely upon the possibility of an extension of intimidation now that illegal activities were on both sides of the sectarian political fence.

In those circumstances, and having considered carefully all the answers given to us by the Government when these clauses were examined in Committee, the question that we felt bound to ask was: Is there any justification for applying these provisions of diluted justice throughout the whole range of the scheduled offences, covering so wide a spectrum of the criminal system?

The conclusion to which we came is that, even if it could be justified in some cases, notwithstanding the powers available to detain those regarded as dangerous terrorists, notwithstanding the powers of proscription of terrorist organisations under Part III, it could not be regarded as a necessity across the whole field of offences, even in cases where there was no possibility or question of intimidation or other unlawful conduct.

4.15 p.m.

This is why we have put down the new clause. It provides that if someone is charged with one of these many scheduled offences—murder, violence, bombing and so on—the offences will be tried according to the ordinary system of law, unless a judge of the High Court can be persuaded by proceedings, which we accept would have to be in private, that duress, violence, intimidation, bribery, fraud, other unlawful conduct or a reasonable apprehension thereof existed to such a degree that the prospects of a fair and just trial—fair both to the defendants and to the prosecution—are or are likely to be substantially prejudiced.

We have thus reduced the generality of these provisions to the particular cases in which that can be proved, and we allow that procedure to be put into effect not only before the commencement of cases but also during them. Thus. if at any time in the course of a case it came to the knowledge of either the Attorney-General or his representative, or, indeed, of a defendant—defendants may be equally prejudiced by these things—that there was a danger of substantial prejudice to a fair and just trial, at any stage an application could be made to the High Court judge. If he were satisfied that that was the position, the jury could be discharged, and the case would continue either with the judge alone sitting to determine it—or, as is now the position as a result of a successful amendment in Committee, with the judge and two other legally qualified people—or, if it were felt in the circumstances of the case that the whole trial should start again, the judge could so direct.

The House will recollect that many of the provisions in Part I which we discussed at length in Committee were carried by the narrowest of majorities—indeed, in several cases only by the casting vote of the Chairman. That applied in particular to what is now Clause 2: that is to say, the clause which removes the right to jury trial, a right that we have always regarded as fundamentally important to the ordinary citizen.

Sir Elwyn Jones (West Ham, South)

The Government were defeated on the single judge provision.

Mr. Silkin

As my right hon. and learned Friend reminds me, on the single judge provision, which we shall be debating again later, the Government were defeated in Committee.

It is fair to say that not only did the votes show considerable hesitation, to put it at its very least, about these provisions, but, more so, those hon. or hon. and gallant Members who found themselves unable not to support the Government by their vote expressed great anxiety in their speeches.

In those circumstance we believe it would be entirely wrong that these provisions should spread across the whole range of these offences. If they can be justified at all, let them be justified in relation to the particular case; and if there is any real apprehension that a jury may be intimidated, or that they fear intimidation, or that a witness may fear intimidation, then it would be possible for anyone affected by it, whether the Attorney-General or a defendant, to make use of this procedure and apply to a judge and tell the judge in private The evidence upon which his fear is based. If the judge were satisfied on that, the provisions of Part I would apply.

We put this forward as a fair, reasonable and just compromise between the views, which are, of course, seriously and sincerely held on both sides, of those who feel it is going far too far that every offence of any kind in the schedule should necessarily be dealt with by the diluted justice procedure of Part I, and those who feel that it is necessary that some safeguard of this kind should be provided. It is our hope that the Government will see the force of that argument and will accept this position. We have gone as far as we can with this new clause to meet their view, and we hope that they will be as accommodating towards our views as we have been to theirs.

The Solicitor-General (Sir Michael Havers)

I do not intend to follow the generalities of some of the comments made by the hon. and learned Gentleman in moving the new clause since they would seem to me to be more appropriate when the House comes to consider the next group of amendments. I intend to confine myself to what is contained in the new clause, in particular the philosophy that has been put forward by the hon. and learned Gentleman, in the sense that if at any time in the course of a case it comes to the knowledge of the Attorney-General or the defendant that there is duress of whatever it may be, that a High Court judge can make the order at once.

I have to advise the House that that is a totally unrealistic approach. One must see what the new clause involves because there is about it the major difficulty that in order for it to be effective, particularly if a Part I direction were to be made, a decision would have to be taken by the High Court judge before the committal proceedings, because it would be at the committal proceedings that a decision would have to be taken whether the various provisions in Part I, such as the admissibility of admissions by an accused person or the admission of other statements, and other matters set out in Part I are part of the case on committal; because if it is not a scheduled offence at that stage evidence would not be admissible in the committal proceedings.

One would have, therefore, an application for a decision by a High Court judge before committal but that judge at that far stage from the ultimate trial would have to ask himself whether he was satisfied that by reason of duress, violence, intimidation, bribery, fraud or other unlawful conduct or the reasonable apprehension thereof the prospects of a fair and just trial are or are likely to be substantially prejudiced. This would be—I emphasise this—in respect of a case not yet committed and in respect of a case the trial of which certainly would be several months away. It would be imposing upon that High Court judge the duty to apply a subjective test to it which it seems to me he would be quite unable to do, just as the Attorney-General would be quite unable to satisfy him at that stage, far from the trial, of any of the grounds set out in subsection (3) of the new clause. The purpose of the Bill as it is at present is to provide an objective test, subject of course to the limited discretion vested in the Attorney-General under the two certifying-out procedures in the notes at the end of Schedule 4.

It is important also to look at what would be involved in sheer physical work. There are at the moment, I believe, some 350 committal offences which if this Bill becomes law will be scheduled type offences. There are 180 schedule-type offences which have been committed, or "returned" as it is called in Northern Ireland, awaiting trial; and the fairest estimate that can be given for the future, from now on, would be about 100 such charges per month. Each of those cases would have to be argued before a judge in chambers in private, and there would also be a right provided here for appeal thereafter. So there is a backlog, even if the Bill became law today with this new clause in it, of just under 550 cases and a running future monthly increase of about 100; and if each case is to be argued, as it would possibly have to be, one can see only few cases being dealt with on application by the Attorney-General every day.

There is also another very serious consequence. If the judge was satisfied by the evidence under subsection (3) and made a Part I direction, the prejudicial effect of that on a defendant would in our view be extreme, when it is known that the case was one of those which fell within subsection (3).

The Government's intention is that Part I should apply only where necessary, and as a result there has been very careful selection of offences, and there is the certifying-out procedure giving a discretion to the Attorney-General in cases which may be more domestic than terrorist offences. In reality, the Bill is assuming that if an offence in Schedule 4 is charged it would be because the situation in Northern Ireland is such that it is reasonable for Part I to apply. These reasons are really based on the evidence of the widespread and general situation which will be given by my right hon. and learned Friend in more detail in the next group of amendments.

It would be almost impossible in any individual case to know whether the risk so far ahead was likely to bring it within subsection (3) and, as I have told the House, would impose what I believe to be an impossible burden upon the Attorney-General in seeking to satisfy a judge under that subsection. The discretion which is given to the judge does not, under this amendment, limit itself in the way spoken of by the hon. and learned Gentleman. As the judge is asked to consider the whole of Part I except for Clauses 1 and 9, he would have to consider bail, venue, evidential provisions. so far as confessions are concerned, and statements by someone not available. How he is to do that under subsection (3) completely baffles me.

There is no likelihood of a trial being prejudiced where there is created a need for restrictions; for example, on bail or evidential provisions. Those are based on quite separate provisions, and I must advise firmly that they are not really capable of being adjudicated upon so far as they are concerned in each individual case. For these reasons I say the amendment is unrealistic and impossible of operation, and I invite the House to reject it.

4.30 p.m.

Mr. R. T. Paget (Northampton)

As I see it, we have an army engaged in Northern Ireland on very painful and dangerous duties; an army of occupation facing a guerrilla. That army—I have complained about this previously—has been denied the protection normally given to or taken by an army that finds itself in that position. Somewhat belatedly, and inadequately, the Government. by this Bill, are doing something to remedy that.

The new clause is to water down what the Government are doing, which I regard already as inadequate. Therefore, I am unable to support it.

I have been having correspondence with both our troops and our police in Ireland. I do not think that my hon. Friends, or the Government, realise what is happening to the morale of the Army in Northern Ireland. It is bad. it is getting worse. The recruiting figures will not prove to be a passing phenomenon, particularly the re-engagements of the young sergeants, and this is even worse in respect of the police.

When I raised this matter the other day, both the Prime Minister and the Secretary of State pooh-poohed it. I am sure that they were sincere, because it was what the generals had told them. Nevertheless, the trouble here is that this is a soldier's problem, and there is a rather dangerous loss of confidence in the command.

That is not the newest thing in the world. Troops often become disenchanted with the staff. That is the kind of feeling here. But there must be some substance to it.

One of the letters that I have had, after describing the kind of things that the troops were up against, says this: Some idiot general gets up about once a month and tells the world that we are winning. It makes the soldiers laugh. The bombs are not stopping. They are getting worse. The casualties and the incidents are getting worse. What are we winning?

The Secretary of State for Northern Ireland (Mr. William Whitelaw)

The hon. and learned Gentleman is making a lot of assertions. I should not like him to think from my silence that I agree with his statements, or that the statistics prove that what he is saying is accurate.

Mr. Paget

I got the figures from the Library. We shall come to them in a moment.

Another anxious letter that I received says From Brigadier upwards they are interested in their own rat race and they care more about avoiding a political row than the safety of their soldiers. That is what the Army is feeling. I do not know whether or not that is just, but it happens that the highest ranks are involved in this political situation, which they may understand better than the lower ranks. However, it is a very unhappy morale situation.

Mr. Whitelaw

The hon. and learned Gentleman is making some very serious accusations which I do not accept. My own information and knowledge is not confined to talking to the generals. I have been a soldier too, as the hon. and learned Gentleman knows, and I wish to find my information from throughout the Army, and I do. I do not accept the assertions that the hon. and learned Gentleman is making on the basis of some correspondence. He is seeking to argue from a particular to a general in a way that is most dangerous.

Mr. Paget

This is the great difficulty. I gave notice of the particular points and quotations that I would be making, but in these circumstances one has to argue from the particular to the general. When one finds so many people serving in this Army, doing this job, and getting really anxious and wanting this matter raised, it should be raised. They should hear that this is being said in Parliament and that the Government are being made aware of it and are dealing with the point to the best of their ability.

Mr. Carol Mather (Esher)

Has it occurred to the hon. and learned Gentleman that it is remarkable that under the very difficult conditions in which the soldiers operate in Northern Ireland, the morale is so high that they like being on operations in Ireland rather more than being on exercise in Germany?

Mr. Paget

That may or may not be so. I agree that morale, particularly at regimental level, has so far stood up very well. But we are finding more and more people saying, "We are not returning for another go." That is the trouble.

I refer now to another case, that of Captain Lanyon. He was in civilian clothes and used a pistol to defend himself. He was prosecuted for attempted murder. One fully understands the attitude of impartiality that the Government have to assume, but when it becomes impartiality between the IRA and our own forces one understands the anxieties running through this. These anxieties are real. It is no use shutting our eyes to them. When we get the two major parties in agreement on this kind of issue, it is for the odd "out" people to put the point of view of the soldiers who are very unhappy.

Again, here is the kind of case about which my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silk in) was saying there were not absurd acquittals. Has he considered the case of Ward and MacShaffery? A patrol of the Scots Guards was shot at, and saw that it had been shot at, from No. 16 Duraw Park, in Londonderry. The soldiers were very quick, and closed both doors. They caught the two men running out. One had an Armalite magazine in one pocket and expended bullet shells in the other. An Armalite rifle was found upstairs. Lead marks were found on Ward's finger. When those were found Ward said, "That is because MacShaffery was wearing gloves." Both men were acquitted, even of possession of the bullets in their pockets. What effect does that have on the morale of the Army and the police? We have to have some tougher trial that stops that sort of thing happening.

Mr. Alexander W. Lyon (York)

What was the defence?

Mr. Paget

There was no defence. The defence was. "We are Republicans. We do not recognise this court. We refuse to plead."

Mr. Merlyn Rees (Leeds, South)

Why were they not sentenced?

Mr. Paget

Because they were acquitted. With that kind of case occurring, I ask people, please, not to tell us that they want to water down the means of tightening up the procedure.

This kind of thing has effect right through in the question of arrests and getting them. This is an impression of the troops. I again quote from letters. Commanders will not allow arrest of suspects if they can avoid it. Tough interrogation is forbidden. We must avoid a row. Do not do anything that might annoy the other side. Keep the way clear for a political solution. That is not the way to deal with a guerrilla movement. A letter from the Grenadiers says: There were periods of two or three days during our last tour when we were given clear orders not to arrest anyone"— The next part is underlined— whether or not they were on the wanted list, in case an arrest provoked hostile action. They go on to say: On more than one occasion when guardsmen arrested men for whom they had been searching for months they were made to let them go because of a blanket order of no arrests. I do not see how we can do that.

When the troops do arrest someone it ought to snowball. From one arrest we ought to get several. But there is a continual complaint that when arrests are made that is enough, and they are told not to go on.

There is a difficulty in getting searches and a difficulty with the Press. When the Press criticise a unit for being energetic, instead of the unit getting the backing that it ought to have, the company commanders are warned, which is humiliating for them and for the men.

There is another question that also gets on their nerves—the idea of an accepted casualty rate. I do not know if casualty rates are acceptable to the Government, but the troops have the idea that there is such a rate. They call it the "duty target." These are all things which are going on.

I shall read a passage that impressed me greatly, written by an officer who has been on a number of tours to Northern Ireland. He says: Like Keat's small boats they are 'borne aloft or sinking as the light wind lives and dies'. Ever since I came to Derry in 1969 I have watched them keep the tragedy alive by blowing hot and cold. We could easily finish it in two or three months. Every soldier knows this. But he will not keep coming back to be a duty target or an acceptable casualty. While my battalion … was in Derry we had to stand by while the IRA fired Armalites over the grave of one of their terrorists. Later one of our guardsmen was shot by the same sort of weapon in the Creggan. What explanation do I give to my soldiers. Every day my men saw Reg Tester in the Creggan. He is known to have helped murder Ranger Best. We cannot arrest him because we have a truce with the Official IRA. If the morale of the troops stands that sort of thing it is astonishing.

I would go much further than this. I would recall Field Marshall Templer. He is not too old. He would restore confidence in the troops. I would have martial law. That, according to the customs of war, is the protection granted to an army of occupation in these circumstances. It is to prohibit actions, primarily those of carrying arms, explosives and ammunition, to the danger of troops. For people caught in possession of arms I would have court martial and execution of the sentence within hours. That is the only means of controlling a situation such as this. If we mean to win, that is what we should do.

I believe, too, that in districts in which all the women are obstructing the troops there should be a collective punishment, with effective curfews. Till we are prepared to do what the customs of war allow in such situations, I do not think that we can win. I believe that it is unfair to ask our Army to go on in these circumstances.

Mr. James Wellbeloved (Erith and Crayford)

Instead of my hon. and learned Friend invoking Nazi-like tactics to deal with the situation, would it not be far better for him to use his words to remove the army of occupation?

Mr. Paget

My hon. Friend can use any pejorative words he likes. He can call the tactics "Nazi-like" or otherwise. The German Army was very effective in protecting itself in occupation, and on the whole did so according to the laws of war.

Mr. Alexander W. Lyon

It still lost the war.

Mr. Paget

I dare say it still lost. I would prefer adopting these methods to accepting the appalling cruelty of a civil war in Ireland—for that is the alternative Either we take the Army away and there is a civil war in Ireland, or we leave it there. If the Army is left there, it is only fair to give it the proper protection that in any other war circumstances it always would have been given—the power to protect itself. the power to win the war in which we have engaged it and in which we have caused it to suffer. It is wrong and unfair to deny the Army the means of winning the war. If we will the end we should will the means.

Mr. A. W. Stallard (St. Pancras, North)

Does my hon. and learned Friend realise that I have listened with horror and sadness to his mischievous and dangerous contribution to the debate? How does he explain the concept of an army of occupation in a part of the United Kingdom? This is a concept which people who recognise and accept that the North is a part of the United Kingdom find very difficult to follow. We were told the other day that British soldiers were at home in the Six Counties. My hon. and learned Friend now says that they are an army of occupation. Will he enlarge on this?

Mr. Paget

Once an army is brought in for the primary purpose of defending and supporting the civil power against rebellion it becomes an army of occupation in any ordinary sense of the word.

4.45 p.m.

Mr. Stanley R. McMaster (Belfast, East)

I support what the hon. and learned Member for Northampton (Mr. Paget) has said. He referred to the present situation in Northern Ireland. The situation in the past 24 hours has been worse than pretty well any 24 hours in the past three years. There have been serious riots at Maze Prison, buses have been hijacked and set on fire with the passengers still on board, bombs have been set off and one person has been assassinated.

I see that my right hon. Friend disagrees. If he selects any day at random in the period up to March of last year before the appointment of the Dip-lock Commission—that was in September, I believe—and before Stormont was suspended, he will find that the situation today is as bad as it has ever been.

Despite all the experiments of right hon. and hon. Members opposite and those of my right hon. Friend with new constitutions, plebiscites, local authority elections, and the new Assembly election, the security position is very serious. I do not know how anyone who has read the report of the Diplock Commission could table an amendment such as that in the names of right hon. and hon. Member's opposite.

I agree completely with what the hon. and learned Member for Northampton said about weakening the provisions of the Bill. I do not like to see emergency measures set out. The House must remember that Parliament's primary duty is to maintain law and order. We must ask ourselves whether this Government and the immediately preceding Government have failed in their duty of preserving, or perhaps restoring, law and order in Northern Ireland.

There is no doubt that the provisions of the common law, of which we in this country are so proud, favour the accused. The hon. and learned Gentleman referred to one case. He will perhaps recall the details of another case in which four men were arrested in a car. A gun was found in the car. The men were charged with and tried for possession of arms. None of them would plead; they all claimed to be Republicans and not to recognise the court. The result of that trial and appeal was that the men were released simply because, applying the ordinary principles of common law, it could not be established which of the four, if any one of them, was guilty of possession of the firearm. How in the circumstances prevailing can anyone get away with that?

Many hon. Members have visited Northern Ireland and have seen for themselves the results of the last three years of violence and destruction there. Murders take place daily, bombs are set off at random having been planted in busy thoroughfares, shops or public houses and other places, and many people are injured for life. The number of people who have been thus murdered now numbers 850, and the number mounted seriously in the past year. How can ordinary citizens be expected to stand up to this?

The common law favours the accused. The proof is in the number of murders committed in Northern Ireland. Every one of the 850 killed have been murdered, but how many convictions have there been? How many people have been charged even? The number of convictions can be counted on the fingers of one hand. How does the House expect the public in Northern Ireland to stand for that and not react? Our duty is to restore law and order and we must use the measures set out in the Bill. The situation demands nothing less than those measures.

I agree with the hon. and learned Member for Northampton that even stronger measures should be used. The hon. Member for Erith and Crayford (Mr. Wellbeloved) referred to the army of occupation in Northern Ireland. [Interruption.]

Mr. Wellbeloved

I would describe them as tethered goats.

Mr. McMaster

The obvious answer is that Northern Ireland is part of the United Kingdom and the Army there is the Army of the United Kingdom. It is there because the Labour Government chose to take control of the security situation in 1969. They appointed a famous mountaineer to investigate and, following the report of the committee headed by him, they suspended the local militia. As the hon. and learned Member said, the situation could be cleared up in a few weeks by the security forces, given the will. The situation in August 1969 could have been cleared up in a few days and 850 lives could have been saved and millions of pounds of damage avoided had the politicians in this House not interfered and had the local militia been allowed to continue.

There is frustration in Northern Ireland. How much can the people there be expected to stand for? They are in an intolerable situation, and unless justice can be seen to be done, unless those who are guilty of the offences are brought quickly to justice, the pressures there will increase daily. There is growing polarisation of feeling. Hatred grows. There is a pressure for public demonstrations which makes the job of the security forces more and more difficult. The only way to ease the situation is to let it be seen that those who are responsible for crimes are being put away—are being arrested and either tried in the ordinary course of events or brought to justice under the provisions of the Bill. It must be seen that they are not being acquitted by juries who are being intimidated. Unless that happens, the difficulties facing the security forces will become impossible and the reconcilation for which we all aim will become even more difficult to achieve. We must restore law and order, and we must do so rapidly. It is necessary, therefore, to set aside the ordinary principles of common law, and it is for that reason that I totally oppose the clause.

Mr. Michael English (Nottingham, West)

Hon. Members who served on the Standing Committee on the Bill will be aware that it created some strange bedfellows. For example, my hon. Friends and I found ourselves on the same side in Divisions as the hon. Member for Antrim, North (Rev. Ian Paisley), which is a mysterious situation. It should be pointed out that when my hon. Friend the Member for Belfast, West (Mr. Fitt) and the hon. Member for Antrim, North voted with the Labour Party they repre- sented an overwhelming body of people in Northern Ireland. Now we have a strange alliance between my hon. and learned Friend the Member for Northampton (Mr. Paget) and the hon. Member for Belfast, East (Mr. McMaster).

I am sorry that the debate seems to have strayed far from the new clause. I did not hear the hon. Member for Belfast, East mention the clause once. My hon. and learned Friend the Member for Northampton, possibly because he is a learned Member, managed to mention it in the early part of his speech. However, they are both speaking as though everybody in this House was out of step but themselves. Surely they realise that there are hon. Members of reasonable intelligence in this House who do not agree with them? I suggest to them that my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan) and the Secretary of State, the two people who have been primarily responsible for dealing with this difficult situation, are not the least able politicians in the United Kingdom.

Everyone in this House is well aware of the possibility of complete and absolute repression in Northern Ireland. But that would be politically undesirable and also, probably, politically impossible. We could summon a few East German experts for advice on how to close the border completely, but what of the international repercussions? What about the feelings of the people of this country? We could close the courts and declare martial law throughout the Province, as my hon. and learned Friend advocates. But the people on this side of the water, let alone the people of Ulster, would not stand for it. My hon. and gallant Friend the Member for Mansfield (Mr. Concannon) remarked that the Nazis had lost the war. If we employed their methods as my hon. and learned Friend advocates we should probably lose too.

Mr. McMaster

How did we defeat the Nazis? Did we do so by concessions and by loving them?

Mr. English

Among other things, we did it with the support of the very brave people who were in the Resistance movement in the occupied countries in Europe, people who resisted the Nazis because they objected to the methods they used to rule. They, too, were called terrorists.

[Interruption.] Having been a PPS, which is a situation similar to that of a Whip, I sympathise with hon. Members like my hon. and gallant Friend the Member for Mansfield (Mr. Concannon), who must remain silent in circumstances in which they would much rather be allowed to speak. It is not because other people in this House do not realise that such measures as were advocated by my hon. and learned Friend could be employed that they have not been suggested. They have not been suggested because we recognise that they are politically impossible and undesirable.

Many of the problems at which this Bill is aimed could be solved by a simple process. We could hold the trials in Britain. But I can imagine the protests that would bring from Unionists as well as from supporters of the IRA and the SDLP. I can imagine the protests which would be made throughout Ireland from both sides if it was suggested that these trials were held in England before an English jury. The protests would illustrate that although Northern Ireland is a part of the United Kingdom it is a most unusual part.

Mr. John E. Magimiis (Armagh)

Would not the same thing arise if the trial was held in Lancashire and was then transferred to London?

Mr. English

I do not agree. Trials are often held in the Old Bailey for offences committed in all parts of England, but not from Northern Ireland.

Mr. Maginnis

The hon. Member must be fair. If he had been reading his Press he would know that at least 12 people from Northern Ireland had been tried at the Old Bailey in recent times.

5.0 p.m.

Mr. English

I think we are straying even further from the point. Although we agree that in the circumstances of Northern Ireland something of the nature of the Bill is needed, other hon. Members may say that we should go further. Some do. Other hon. Members may say that we should not go so far. Some do. But most hon. Members, especially on the Opposition side, agree that something of this nature is necessary.

The primary reason for the new clause is that we consider that the scheduled offences go too far. It is no use the Solicitor-General saying that there is a backlog of 550 cases, because the backlog entirely depends on the acceptance of the definition of scheduled offences in Schedule 3. He correctly stated that the Attorney-General of Northern Ireland, for example, could say that a scheduled offence was not to be treated as a scheduled offence. He did not say that that may be true of murder or manslaughter but not true of every other offence. For example, if someone burns a hay rick because he is having a feud with his next-door neighbour—not an uncommon variety of arson—it is a scheduled offence, even if the argument is about the wife of one of the men involved rather than about the Republican status of Northern Ireland. Similarly, if someone possesses, or uses, an imitation firearm—which is highly dangerous in Northern Ireland, or in London, because he is liable to get shot—he is treated exactly the same as if he were using a real firearm. That is likely to encourage people to use a real firearm, rather than an imitation one. Again, if someone robs a bank, not to obtain funds for Republicans or extremists on the opposite side but to get cash for his own pocket, it is also a scheduled offence.

The extent of Schedule 3 is the real reason for our new clause. My right hon. Friends believe that the list of scheduled offences is far too wide for the purposes for which it is intended. We accept that there is a reason and purpose for it, but it does not have to be carried out in such an extreme way. Rather than have a blanket provision, we propose the relatively simple procedure of suggesting to a High Court judge in private that it is necessary, because of the circumstances of Northern Ireland, to have a particular case treated as a scheduled offence.

We do not believe that in so doing we are betraying the Army in Northern Ireland or betraying the people of Northern Ireland. On the contrary, we believe that we are still offering to the people of Northern Ireland, even if they are accused of offences, as much protection as is feasible in the circumstances and, at the same time, assisting the forces of law and order to succeed.

Mr. Wellbeloved

I did not originally intend to contribute to the debate, but the speech of my hon. and learned Friend the Member for Northampton (Mr. Paget), and the reaction of some hon. Members to it, has provoked me to say a few words.

I fundamentally disagree with the solution which my hon. and learned Friend proposes, which would be to try to introduce into Northern Ireland, via the British Forces there, tactics which would be unacceptable to the House, and the country—

Mr. J. D. Concannon (Mansfield)

And to the British Forces.

Mr. Wellbeloved

I agree with my hon. Friend, who served so distinguishedly as a Regular soldier.

The solution which my hon. and learned Friend suggests cannot be put into operation. But when hon. Members try to decry my hon. and learned Friend for legitimately presenting the views of the British Army and the feeling of at least some soldiers about the problems and burdens imposed upon them, he has my full support, and I would defend him from being shouted down by any hon. Member on either side. It is about time the feelings of the British Army in Ireland were properly expressed in the documented form in which my hon. and learned Friend presented them. I tell the hon. Member for Belfast, East (Mr. McMaster) that I did not describe the British Army as an army of occupation: I was using the words of my hon. and learned Friend.

I number myself among those who are not the Secretary of State's bosom friends. I am not one of those who say that he is a jolly good fellow. To me he is a Conservative Minister who has supported every reactionary measure the present Government have put forward, and he does not become a good friend just because some of my hon. Friends happen to agree with him on this one aspect of policy. Although I am not a bosom friend of the right hon. Gentleman, I recognise the burden carried by anyone who occupies the position of Secretary of State for Northern Ireland—the responsibility, the worry, the sleeplessness. But the right hon. Gentleman must not become too sensitive to other hon. Members like my hon. and learned Friend, and, if I may say so with modesty, myself, who take an absolutely different view from that which he holds. We have every right to express in the House our views about the present policy and alternative policies without being accused by the right hon. Gentleman of being offensive.

Mr. Whitelaw

I am not being in the least sensitive. I was arguing with the hon. Gentleman the other night something that I believe to be right, and when I intervened in the speech of the hon. and learned Member for Northampton (Mr. Paget), it was very important that I should do so. Very adverse statements were made about generals, who cannot speak for themselves. They are responsible in some measure to me in Northern Ireland, and I thought it right to speak up for them.

Mr. Wellbeloved

The right hon. Gentleman has that right, and if he does it in the spirit in which he has done it today no one will take exception. But I hope that the burdens of his office will not make him intolerant of, and insensitive to, the opinions of other people and their duty to give expressions to those opinions in the House. The right hon. Gentleman will perhaps understand why at least I think he is moving towards that position. I am glad that he is resuming his more jovial attitude this afternoon.

My hon. and learned Friend used the terms "acceptable casualty rate" and "duty targets" of the British Army in Northern Ireland. Those expressions are being used by British troops in Northern Ireland. I have spoken to soldiers on leave in this country who have used them. That is how they see themselves in Northern Ireland. They believe that the Government are prepared, as indeed they are, whether we pass the clause or not, to have an acceptable casualty rate, and that they are "duty targets" when they perform their duties.

Whatever happens to the clause, the right hon. Gentleman should bear in mind that those soldiers in Northern Ireland who believe that they are there as "an acceptable casualty rate" and "duty targets" are upholding a constitutional Bill passed by 97 votes of the House—and that is a disgrace.

Mr. Merlyn Rees

Although it may not seem so after three-quarters of an hour's debate, the clause arose from a very detailed Committee stage when the Opposition tried to improve the Bill, which makes changes in the rules of the courts and, in Schedule 1, formalises the Detention of Terrorists Order.

Confidence in the law is an important part of our way of life in the United Kingdom, and our changes are not designed to weaken the security forces. All that we have argued is that the scheduled offences part of the Bill should be reconsidered, and that the judge in every case should have to decide that in the particular instance the offence is a scheduled offence. The clause says no more and no less than that. The Solicitor-General argues differently.

Our argument should not have given rise to the point of view of the hon. Member for Belfast, East (Mr. McMaster), who says the same thing every time he speaks. What he argued today could not possibly have arisen from our amendment.

If confidence in the law is important in any community, confidence in leaders is important in the Armed Forces. I do not believe that the general view put forward by my hon. and learned Friend the Member for Northampton (Mr. Paget), on the basis of a few cases, is the overall view of the Armed Forces in Northern Ireland, though there may well be some people who feel that way. On the one occasion that I went out on patrol with other hon. Members in Belfast with the paratroopers, I must confess that I felt exactly like a duty target, as my hon. and learned Friend suggested, but I do not believe that that is the general view of the Services in Northern Ireland.

In reply to my hon. and learned Friend's views about martial law about what the troops should do, instant law, and so on, I say only that it is not the first time they have been suggested for Ireland. The story of Ireland from Henry II to Cromwell is littered with people who suggested that method and carried it out. See what good that does in the long run.

Mr. Paget

It is precisely the method that was used by Mr. Cosgrave's father, by Mr. Griffiths and by Mr. Collins when they established the Free State in Ireland—and it worked.

Mr. Rees

My hon. and learned Friend may argue that it has worked, but if I take him up on that argument we shall go into a Third Reading debate, which I am trying to avoid.

I hope that the hon. Member for Belfast, East will bear with me while I reveal to him one view that I have on Ireland that I do not think I have ever put forward. When he talks as he does, he sometimes needles me—I nearly said "beyond the pale", but that, too, would show an Irish background. I once fought an election in which the Tory candidate had as the main plank in his platform the allegation that Labour voters had stayed at home while the Tories won the war. I was with my father when he was dying from being gassed. My wife held me back and said Leave the man alone. He is a buffoon and a fool, and even if he gets elected to the House of Commons"—as he did—"he will one day suffer for it." On the day when he did suffer, I told her "Sister were you right!"

I am saying this to the hon. Gentleman because my father was a soldier at the battle of the Somme. He never went around parading about it. Maybe he was a good loyal member of the Labour Party who thought that those things were best forgotten. He was also taken as a soldier to Ireland in 1916. This is not the first time that my family has been involved in Ireland. When I see the hon. Gentleman looking towards the Opposition as if in some way we are soft or murderers and the like, he is wrong and I wish that lie would stop doing so.

5.15 p.m.

Every time the hon. Member talks the way he does he would create another three members of the IRA if he could be heard in Ireland. Let me not hear from the hon. Gentleman his attitude that only he is concerned with the IRA. I am concerned with the IRA and the UVF. The pair of them are not doing any good to Northern Ireland.

Mr. McMaster

The hon. and learned Member for Dulwich (Mr. S. C. Silkin) argued that it had not been established that there was any intimidation in Northern Ireland. It was from that basis that I was arguing that the clause, if based on that argument, is misguided. The main point which has been made by the hon. Member for Leeds, South (Mr. Merlyn Rees) arises from a misunderstanding—

Mr. Deputy Speaker (Mr. E. L. Mallalieu)

Is this a speech or an intervention?

Mr. McMaster

The main point of my intervention is that all the work which has been done by the Government and the Opposition to find an answer has not solved the problem in Northern Ireland. Sooner or later we shall have to deal with the IRA, and I want it to be sooner.

Mr. Rees

I am seeking to argue in broad terms that the Government are

Question accordingly negatived.

right to go along the political road. There is nothing offensive about the Opposition supporting that approach. We naïvely thought that we had come here to talk about scheduled offences. I hope that my right hon. and hon. Friends will vote for the new clause.

Question put, That the clause be read a Second time:—

The House divided: Ayes 76, Noes 93.

Division No. 187.]	AYES	[5.20 p.m.
Archer, Peter (Rowley Regis)	Healey, Rt. Hn. Denis	Pannell, Rt. Hn. Charles
Atkinson, Norman	Heffer, Eric S.	Pavitt, Laurie
Bishop, E. S.	Horam, John	Pendry, Tom
Booth, Albert	Houghton, Rt. Hn. Douglas	Prescott, John
Boothroyd, Miss B. (West Brom.)	Janner, Greville	Radice, Giles
Cocks, Michael (Bristol, S.)	Johnson, Carol (Lewisham, S.)	Rees, Merlyn (Leeds, S.)
Dalyell, Tam	Jones, Barry (Flint, E.)	Robertson, John (Paisley)
Davis, Terry (Bromsgrove)	Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)	Rodgers, William (Stockton-on-Tees)
Dell, Rt. Hn. Edmund	Kaufman, Gerald	Ross, Rt. Hn. William (Kilmarnock)
Duffy, A. E. P.	Kerr, Russell	Short, Rt. Hn. Edward (N'c'tle-u-Tyne)
Dunnett, Jack	Lamborn, Harry	Silkin, Hn. S. C. (Dulwich)
English, Michael	Lawson, George	Silverman, Julius
Ewing, Harry	Leonard, Dick	Skinner, Dennis
Faulds, Andrew	Lipton, Marcus	Stallard, A. W.
Fitch, Alan (Wigan)	Lyon, Alexander W. (York)	Swain, Thomas
Fitt, Gerard (Belfast, W.)	McAliskey, Mrs. Bernadette	Tope, Graham
Foot, Michael	McMillan, Tom (Glasgow, C.)	Urwin, T. W.
Fraser, John (Norwood)	McNamara, J. Kevin	Wainwright, Edwin
Freeson, Reginald	Marquand, David	Wallace, George
Carmichael, Neil	Mellish, Rt. Hn. Robert	Whitlock, William
Carter, Ray (Birmingh'm, Northfield)	Millan, Bruce	Williams, W. T. (Warrington)
Gilbert, Dr. John	Miller, Dr. M. S.	Wilson, Rt. Hn. Harold (Huyton)
Golding, John	Morris, Alfred (Wythenshawe)
Grant, John D. (Islington, E.)	Orme, Stanley	TELLERS FOR THE AYES:
Grimond, Rt. Hn. J.	Oswald, Thomas	Mr. James A. Dunn and
Harper, Joseph	Owen, Dr. David (Plymouth, Sutton)	Mr. J. D. Concannon.
Harrison, Walter (Wakefield)	Owen, Idris (Stockport, N.)
NOES
Archer, Jeffrey (Louth)	Hall, Sir John (Wycombe)	Powell, Rt. Hn. J. Enoch
Atkins, Humphrey	Hannam, John (Exeter)	Prior, Rt. Hn. J. M. L.
Awdry, Daniel	Hastings, Stephen	Pym, Rt. Hn. Francis
Benyon, W.	Havers, Sir Michael	Raison, Timothy
Biggs-Davison, John	Hawkins, Paul	Ramsden, Rt. Hn. James
Boscawen, Hn. Robert	Hayhoe, Barney	Rawlinson, Rt. Hn. Sir Peter
Bowden, Andrew	Holland, Philip	Redmond, Robert
Brinton, Sir Tatton	Hornsby-Smith, Rt. Hn. Dame Patricia	Reed, Laurance (Bolton, E.)
Bryan, Sir Paul	Hunt, John	Roberts, Wyn (Conway)
Butler, Adam (Bosworth)	Irvine, Bryant Godman (Rye)	Russell, Sir Ronald
Chapman, Sydney	James, David	Shelton, William (Clapham)
Churchill, W. S.	Jennings, J. C. (Burton)	Shersby, Michael
Clarke, Kenneth (Rushcliffe)	Jopling, Michael	Sinclair, Sir George
Clegg, Walter	Kellett-Bowman, Mrs. Elaine	Skeet, T. H. H.
Cooke, Robert	Kilfedder, James	Stanbrook, Ivor
Coombs, Derek	Knox, David	Stewart-Smith, Geoffrey (Belper)
Cooper, A. E.	Luce, R. N.	Sutcliffe, John
Cormack, Patrick	McMaster, Stanley	Taylor, Frank (Moss Side)
Critchley, Julian	Maginnis, John E.	Tebbit, Norman
Crouch, David	Marten, Neil	Thatcher, Rt. Hn. Mrs. Margaret
Deedes, Rt. Hn. W. F.	Mather, Carol	Thomas, John Stradling (Monmouth)
Dixon, Piers	Meyer, Sir Anthony	Tugendhat, Christopher
Dykes, Hugh	Mills, Stratton (Belfast, N.)	Turton, Rt. Hn. Sir Robin
Elliot, Capt. Walter (Carshalton)	Moate, Roger	van Straubenzee, W. R.
Elliott, R. W. (N'c'tle-upon-Tyne, N.)	Molyneaux, James	Vaughan, Dr. Gerard
Fenner, Mrs. Peggy	Monks, Mrs. Connie	Ward, Dame Irene
Fisher, Nigel (Surbiton)	Neave, Airey	Weatherill, Bernard
Fletcher-Cooke, Charles	Nott, John	White, Roger (Gravesend)
Fortescue, Tim	Onslow, Cranley	Whitelaw, Rt. Hn. William
Fowler, Norman	Orr, Capt. L. P. S.	TELLERS FOR THE NOES:
Green, Alan	Owen, Idris (Stockport, N.)	Mr. Marcus Fox and
Gurden, Harold	Page, Rt. Hn. Graham (Crosby)	Mr. Oscar Murton.