SUPPLEMENTARY PROVISIONS (Hansard, 5 July 1973)

§ Mr. Peter Archer
I beg to move Amendment No. 17, in page 10, line 10, leave out Clause 17.
As when this matter was discussed in Committee, I suspect that the debate will be dominated by the clock. It is a great misfortune that matters of such consequence for men and women should receive such an abbreviated discussion as may well prove to be necessary. I believe that the amendment merits a substantial examination but, happily, I can move it briefly because I believe that the instincts of the House will be in favour of the amendment.
In Clause 17 each subsection outdoes its predecessor in the startling nature of the powers which the Government seek. When it was first proposed to erode the jury system, it was done, as the Government spokesman said, with great reluctance and only because that was preferable to the alternatives. That first proposal seemed as so often to innoculate us against similar scruples later, so that we became more ready to swallow an increasing number of inroads upon what are normally considered essential constitutional safeguards.
If there is a judge and no jury, it becomes possible to make inroads upon the rules of evidence; and so when we reach this clause, which deals with supplementary provisions, we have almost reached the stage when it is no longer a question whether we are to swallow a gnat or a camel. Once the meal has begun the Government seem ready to gobble up every creature within sight from a mouse to an elephant.
I invite the House to look at the provisions of the clause. Subsection (1) provides: Any member of Her Majesty's forces on duty"— not selected people of high rank, not people trained to exercise these powers, not people authorised in some special way, but Any member of Her Majesty's forces on duty or any constable"— 850 again, not a member of the police force of a particular rank, but any constable may enter premises". In case "premises" is not wide enough it then says or any other place— (a) if he considers it necessary to do so in the course of operations for the preservation of peace …". Again, there is no appeal, no question whether the court is persuaded that it is necessary, but simply that he considers it necessary. All that would be required, as I understand it, is that the court should be satisfied that he had arrived at that conclusion, and no doubt arrived at it in good faith.
It continues, as if that were not wide enough: (b) if authorised to do so by or on behalf of the Secretary of State he can do it whether he considers it necessary or not.
If we ask how the Secretary of State is to exercise this very wide power of authorising these inroads, we turn to subsection (5), and we find that he may do so in virtually any way that appeals to him, either by giving a blanket authorisation or by authorising some specific class of action; or he may authorise a specific person or "all persons by whom" these powers are capable of being exercised". The Secretary of State may say that anybody may do it.
When we were discussing these matters in Committee my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) invited information as to how it was proposed that the authorisation should be given. Would it be given by the Secretary of State personally after he had perused the file and directed his mind to the question? We were told that no undertaking could be given as to how the authorisation would be exercised, or at what level. It might be exercised by the Secretary of State, by a Minister of State, or by a senior civil servant. For all we know to the contrary, it might be exercised by a clerk in the Department. So there is no limit to the powers which the Government are taking to themselves.
Under subsection (2) any member of Her Majesty's Forces or any constable. or any other person, if the Secretary of 851 State chooses to authorise that other person, may take possession of any land or property, may place buildings or other structures in a state of defence, or may detain any property or cause it to be destroyed or moved. He may stop a car in which you, Mr. Speaker, or I or any hon. Member is driving home late at night and destroy it. Just in case anything has been accidentally omitted, we come to paragraph (d), under which he may do any other act interfering with any public right or with any private rights of property. So in case there is any power which he has forgotten to ask for he includes this blanket provision at the end.
Under subsection (3) any member of Her Majesty's Forces, any constable or any person whom the Secretary of State authorises may wholly or partly close a highway or interfere with a highway or the use of a highway—which presumably means they may interfere with an individual's use of the highway—may prohibit or restrict the exercise of any right of way or, just in case we had forgotten, the use of any waterway.
Under subsection (4) when the Secretary of State, or anyone whom he has authorised to do any of these things, is exercising his powers, woe betide anyone who interferes with him. When we discussed these matters in Committee the Minister of State assured us that it was distasteful to him to ask for powers so wide. He thought he needed them but he offered to consider the possibility of imposing some limits, at least on subsection (2)(c)—the removal of property—so that if it became necessary to take someone's car away to examine it there would at least be some restriction on the distance it could be removed. It could not then be unnecessarily removed 50 miles away. I have no doubt that having said he would consider it he has done so, but it appears he has been unable to help.

§ Mr. van Straubenzee
Has the hon. and learned Gentleman perhaps overlooked Amendment No. 19?

§ Mr. Archer
Yes, for the moment I had. To an extent it helps but it does not go as far as the consideration for which we asked. It obviously goes as far as the Minister feels able, but it does not meet the specific example I quoted 852 both in Committee and a few moments ago.
There is no need to argue that these powers far exceed the normal rights of a Government over their subjects. We have demonstrated more than once that we recognise the problems the Government are seeking to meet. On this, however, there has been singularly little argument to justify the promotion of such powers. There has been no evidence that either the forces or the police have asked for powers so wide. So far as I recollect there have been no recommendations from the Diplock Committee and no evidence to establish the need for such powers, so I do not think the Minister is in a position to quote the good book on that one.
On what I might call the general principles, in an article in the July issue of the Criminal Law Review, Professor Twining sets out certain constitutional principles which are axiomatic in the application of emergency legislation, one of which is the "minimum derogation principle", the principle that when it is necessary to derogate from constitutional safeguards the derogation should be to the minimum extent necessitated by the exigencies of the situation. One has the impression that in claiming these powers the Government have adopted the maximalist approach. One day someone will look at the Bill and wonder how the House could have conferred such wide powers with so little discussion.
10.15 p.m.
I do not expect to be able to convince the Minister. I cannot adduce any argument that we have not adduced already, and I do not believe that the case benefits from repetition. I suspect that, without my convincing the hon. Gentleman, words alone will not be sufficient to protect the people of Northern Ireland from the clause. But I ask the hon. Gentleman to address his mind to the enormity of the powers which he is arrogating to himself, to the constitutional principles that we all learnt at our mother's knee, and to the need to justify—[Interruption.) The hon. Gentleman seems surprised, but surely both sides have accepted throughout the debates that the Government are making substantial inroads upon principles which in any other situation would have been regarded by us all as axiomatic.
853 In those circumstances, it behoves the Government to justify the powers they are taking, in, on the face of it, so cavalier a manner.

§ Mr. van Straubenzee
The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) will allow me a slightly wry smile over his saying that there has been singularly little argument on the clause. I make no complaint about it—it is what the Committee stage is all about—but we had amendments in Committee to delete in turn subsections (1) and (2), subsection 2(d) and subsection (5). I make no major point of it, but all the amendments were withdrawn, although in fairness I should add that the Opposition said in at least one case that they would want to examine the matter more fully. Therefore, those particularly interested in our affairs can see the justification I made for powers which I concede are very wide, far wider than we would wish powers to be in a normal situation. I hope that a future Government may well be able to ask not to retain them any longer than necessary.
The powers with which we are now dealing, and other powers, are tighter in drafting terms compared with those in the Special Powers Act. The important point is that they are under regular scrutiny by the House and are now exercised by a Secretary of State answerable in general and in detail to the House. He can be questioned about his actions.
It it true that in the present situation in Northern Ireland there are, regrettably, situations—such as the setting up of an Army post on private land, the provisions of one military operation or another—for which it is necessary to provide by law. That, briefly, is why the clause remains in the Bill. My hon. and learned Friend the Solicitor-General will deal with the detailed point in subsection (4), and I shall not trespass on that matter.
If I do not answer the hon. and learned Gentleman in detail, it is for precisely the reason he gave in opening. Neither of us underestimates the importance of the clause. We both understand that in present circumstances, at this precise moment, it is probably to the convenience of all hon. Members that we put our arguments concisely.
854 I can only repeat what I said in Committee, just as the hon. and learned Gentleman can only repeat what he said. In present circumstances, with the safeguards written into the Bill, it is possible to justify the general powers of entry, of interference with rights of property and with highways, subject also to the overwhelming consideration of their being exercised by a Secretary of State answerable to the House. It is on those lines that I justify them.

§ The Solicitor-General
I beg to move Amendment No. 18, in page 10, line 38, after 'authority', insert 'or reasonable excuse (the proof of which lies on him).'. The amendment relates to what has already been forecast by my hon. Friend the Minister of State. The matter was debated in Committee. It was doubtful what would be the position of somebody who was interfering with any apparatus, equipment or other thing used in connection with the exercise of powers—for example, if the security forces in a moment of emergency had had to put across a road a haycart, motor car or something of that sort. If they were then hiding behind a hedge and a perfectly responsible motorist came along and, finding his way blocked, moved the vehicle in order to get home, the question was raised whether the motorist would be sufficiently protected. In order that there should be no doubt about his position the amendment adds after "authority" the following words: or reasonable excuse (the proof of which lies on him) …". That protects the innocent person who without in any way intending to interfere with the security forces seeks to move something because he does not realise that there is any security implication.