DETENTION OF TERRORISTS (Hansard, 5 July 1973)

§ Mr. van Straubenzee
I beg to move Amendment No. 24, in page 24, line 11, leave out from 'shall' to 'subject' in line 12.

Mr. Deputy Speaker
With this we are taking Government Amendment No. 25.

§ Mr. van Straubenzee
These are amendments to the schedule which I undertook in Committee to examine to enable the attendance of the detainee at the tribunal hearing his appeal.

§ Mr. McNamara
I beg to move Amendment No. 26, in page 24, line 26, at end insert: '(34A) Upon any question of law arising out of the decision of the Tribunal an appeal shall lie upon a case stated by the Tribunal to the High Court of Northern Ireland'. In moving this amendment I am returning to a short but important debate in Committee when we discussed a similar amendment. When the Minister of State was extolling to us the virtues of detention as opposed to internment he mentioned the many advantages to the detainee of the new system compared with the disadvantageous position of the internee. One important consideration which he omitted was that there was no appeal from what is basically an executive decision to take away a man's liberty, whether he be a detainee or an internee. The system of detention, no matter how it is disguised, is a system 860 of removing a man's liberty by executive action.
Evidence comes before a Minister. He decides—I am sure with much heart-searching and examination of his conscience—to sign the interim custody order. The order justifies the incarceration of a man for 28 days. Evidence is produced before a commissioner, as to the origin of which he may not always be informed, to justify the imprisonment of the detainee. For permanent detention, an order is made there and then with appeal to a tribunal, similar limitations being placed upon the persons comprising the tribunal as to the amount of evidence they may be allowed to see for security reasons.
We have gone along with the Government so far. They have made their decision. We do not like it because we feel that it should never have been made in the first place. They say they have to have people behind bars, but for security reasons they cannot reveal their source of evidence or the names of the witnesses. We accept that for the sake of argument, but there goes one of the formal grounds of appeal.
We also go so far with the Government as to say that there might be an appeal on mixed law and fact. There might be security grounds for not allowing an appeal in those circumstances, but on the question of pure law we feel there should be some way of bringing this extra judicial process, as the Minister of State calls it, into the normal mainstream of the law, and that it should be possible for some method of appeal to be made without going into the cumbersome procedures and technical rules of prerogative rights, or orders as they now are.
We felt that we had taken the Solicitor-General with us in Committee. When the amendment was moved he rose to examine the difficulties behind our suggestion. There was a long exchange on this matter between him and my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), and eventually we withdrew our amendment because we felt that our point had been conceded. We felt that we had been given an undertaking by the Solicitor-General.
Therefore, this amendment was tabled at a very late stage. We waited and waited for the Government to give some indication of their intentions in this very 861 important matter. They did not table an amendment, and so we have done so. This is of the utmost importance, and the Government indicated to the Committee that they would positively introduce an amendment on these lines.
I accept that the Solicitor-General did not give an explicit undertaking, but he should explain why no suitable amendment has been tabled, especially when he had himself argued so powerfully for the principle of our amendment.

§ Mr. McMaster
The Minister earlier set out the advantages of the procedure adopted under the Bill over the procedure in the Emergency Powers Act. My memory of it is that some procedure was adopted for reviewing the internment orders that had been made and that these were reviewed by the Prime Minister of Northern Ireland. Could my hon. and learned Friend bring us up to date? Is it not true that before the prorogation of Stormont decisions with regard to internment had been reviewed, and that there had been a procedure for their review?

§ The Solicitor-General
The strictures addressed to me by the hon. Member for Kingston upon Hull, North (Mr. McNamara) are slightly harsh. It is right that I should admit that I was almost thinking aloud in the debate upon the Opposition amendment in Committee. It is very difficult to work from the copies of the transcript that we have of what happened on that occasion, but my recollection is that the amendment was one of a number that I was dealing with. It is true that, in discussing them, I almost talked myself not into the idea that it should go necessarily to the Northern Ireland court but into the idea that there should be some form of pre-1906 Crown Cases Reserved position, whereby one would not have an appeal in the ordinary sense but would seek the opinion of some court that could advise the court in question.
In view of the way in which it has been put, perhaps I should remind the House that I started by using the words—I am referring to page 130 of our rather rough notes— I say this off the cuff, without having considered it with anybody else. 862 That indeed was the fact. A little later I said: I do not want to make any commitment, but could I make this point clear? I would not like it to be thought that, in the ordinary 'case stated' procedure"— to the Divisional Court in this country— which goes much wider". Two pages further on I said: If the Committee would agree, as I have only just considered it, and without giving any sort of binding undertaking". A few pages further on I said: What I am seeking to do is merely to ask that I should be allowed to consider what in fact was the position pre-1906, when one had the Court for Crown Cases Reserved. I ended by saying that I would like further time to consider the matter. It must be apparent that I was attracted by the idea, as I still am.
With any sort of court one always has to consider whether the buck ought to stop there, or whether, in certain restricted cases, a case should be further considered. But I have now had time to consider it and to consult, which I did not have when I was last discussing this matter.
Certain things are apparent. The Appeal Tribunal is a tribunal of great legal experience, presided over by one of the most eminent Lord Justices, now retired. In a sense—I say this in no way meaning to be derogatory of the Court of Appeal of Northern Ireland—if it went to the Northern Ireland Appeal Court, as suggested in the amendment, one would merely be substituting one three-judge court for another. To cover most of the occasions there are the prerogative orders, which are always available, so one would not need any form of supplementary appeal procedure, so far as certiorari prohibition or mandamus are concerned.
Equally, it is very important that the Northern Ireland courts—the High Court, Divisional Court or Court of Appeal—should be excluded from the detention procedure. That has been done throughout in order not to involve the Northern Irish courts in that.
Finally, one must ask this question. This is what has finally swung me against tabling an amendment on the lines that I had in mind or being able to advise the House to accept this amendment, which 863 is defective in a number of serious ways. What are the likely chances of the need for this ever arising?
One of the problems that would follow an amendment on the lines that I was discussing off the cuff in Committee on this amendment is that, whichever way one looks at it, we are establishing a precedent. The precedent is a spectre which terrifies most legislators, if not all. This is what has finally convinced me. When one is creating a precedent, and particularly a quite unusual one of this kind, not to the Privy Council, as one might have with the GMC or some-think of that kind, but to the House of Lords, with all the difficulties that would follow about whether the detainee should be allowed to attend and whether, if he were not represented or refused to be represented, he should be entitled to go and argue the point of law himself, and all the other problems, but principally the problem of creating a new appeal to the House of Lords, there have to be strong grounds to justify creating it. In creating an important precedent which can be pointed to on so many other occasions, which have nothing to do with Northern Ireland or detainees, by people who want to create a brand new form of appeal to the House of Lords, and not the sort of system under the 1833 Act to the Privy Council, there have to be very strong grounds to justify creating it.
I was forced back to looking at it and finding it impossible to see any circumstances in which what is attractive to all lawyers, an ultimate court of appeal, should ever arise.
That is why I gave the matter earnest consideration. I spent a lot of time considering it. That is why in the end the Government did not decide to move an amendment to consider it. That is why, accordingly, I find it impossible to advise the House to accept the amendment.

§ Mr. McNamara
With the leave of the House, Mr. Deputy Speaker, I should like to make one or two brief points. We have rehearsed this argument previously. I should like to put a little idea into the Solicitor-General's mind.
What we have established by the detention of terrorists and Schedule 1 is a system which we all find abhorrent. We take away a man's liberty by incarcerat- 864 ing him for such time as the order remains in operation—subject, granted, to certain reviews—in a completely quasi-judicial or extra-judicial process. The House has decided that it wants to keep the system in that way, but surely it is right that we should try to bring it within the mainstream of the law regarding questions of law, legal interpretation, and powers of tribunals and commissions. The Solicitor-General has said "We will deprive a man of his liberty, yet we will not allow him have redress at law."
It is a bad argument for a lawyer to advance that he will not take a certain action because it will establish a precedent. After all, lawyers—like the House of Commons—live by precedent. This legislation is almost without precedent in the House. That is a precedent that the Solicitor-General should consider. He should recommend his right hon. Friends in another place to reconsider the Government's position on the amendment.