`After section 20(9) of the 1978 Act there shall be inserted the following—
(10)(a) In the exercise of the duties and powers conferred on them by this Act, constables and members of Her Majesty's forces may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in lawful arrest of offenders or of persons unlawfully at large.
(b) For the purposes of (a) above, it shall not be deemed reasonable to use lethal force unless:
(c) In (b) above, 'lethal force' shall mean such force as is intended or likely in the circumstances to cause death or serious injury.".' — [Mr. Archer.]
§ Brought up, and read the First time.
§ Mr. Archer
I beg to move, 'That the clause be read a Second time.
This is an attempt to grapple with a problem which has occasioned a great deal of discussion in the courts, political circles and academic literature. We had an enlightening debate in Committee which I found valuable and which helped to clear my mind. We are all in agreement that the rule of law applies to Government and Government alike. We believe that the law should be enforced, but that those who enforce it should themselves carefully observe the limitations on their powers. Those who enforce the law cannot be allowed to destroy confidence in the legal system and the courts and they cannot be permitted to place at risk the values which the law exists to protect. So far. we are all in agreement, but differences begin at the next stage.
Should the rules which are applicable to the security forces in Northern Ireland simply be rules which are applicable to the rest of the population so that the security 345 forces have no obligations and no exemptions which are not shared by the rest of us, or do the powers with which they are invested, the duties which we impose on them and the risks which they are called on to take require some different or more precise formulation?
I am grateful to my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara) for pointing out the enlightening article on the use of deadly force by Mr. R. J. Spjut in "Public Law" for the spring of 1986. He sets out the existing position. Existing law would provide a defence to a prosecution for the use of lethal force if it were applied in reasonable self-defence, the defence of others or to apprehend a person reasonably suspected of having committed an arrestable offence or if it was to prevent the commission of a crime or the escape of an offender unlawfully at large.
That does not end our problems; it raises numerous questions both about what the law now is and what it should be. There is what has been called the proportionality principle, and the report to the Criminal Code Commission expressed it in this way :We take one great principle of the common law to be that, though it sanctions the defence of a man's person, liberty and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done, or which might reasonably be anticipated from the force used, is not disproportioned to the injury or mischief which it is intended to prevent.That principle becomes important when the force that is used is sought to be justified by the necessity of preventing the escape of a fugitive. What crimes may he commit if he escapes, and what is the likelihood of his committing them? How immediate should those consequences be before lethal force is justified? What degree of force would be justified to prevent them? Without attempting to review all that has been said on the subject, the law as it appears from the cases is by no means clear.
We do not even know what instructions are given to members of the forces. The Ministry of Defence declined to publish the instructions on the famous yellow card, although it is not clear in what way that information would assist law breakers. Indeed, what purports to be the contents of the yellow card have been published from time to time. Mr. Spjut has alleged that they include instructions that there must be no firing of shots to warn or to wound and that any shots must he only to kill. There may be reasons for that, but if that is true it is somewhat surprising.
In Committee we debated whether the area where an incident took place could ever be a relevant consideration. I remember the forceful, cogent remarks of the hon. Member for Newry and Armagh (Mr. Mallon) on the subject and I understand the indignation of those who believe that the area where they live might be thought to be an area where lethal force could be justified, whereas other areas would not be. That would he an offensive suggestion to those concerned.
We find little help from Sir George Baker, who considered the problem in paragraphs 401 to 403, but concluded that the matter was not within his terms of reference. I do not propose to repeat the debate that took place in Committee, but it is important that the House 346 should direct its mind to these questions and give considered answers, and that those answers should be embodied in legislation.
That is necessary for three reasons. First, it is necessary in fairness to members of the security forces who should not be left in doubt about the extent of their powers and obligations. Often they must take decisions at a moment's notice on inadequate information and they should not have those difficulties multiplied by uncertainty about the options open to them. Secondly, it is important for the protection of the public. Those in an area of potential risk should be protected by clear provisions of which they and everyone else is aware. Thirdly, it is important to justify public confidence in the rule of law which has sometimes been endangered by events, as was made clear in the debate in Committee. We accepted the criticisms of our amendment in Committee. In drafting this new clause we have sought to take account of those criticisms. I shall not delay the House by going through its provisions in detail, but even if someone were to say, at this late stage, "We believe that these powers and obligations should be made specific and that account should be taken of the arguments which were used in Committee, but we do not agree with the precise way in which you have set them out in this new clause", I would not seek to go to the stake for this clause rather than any other.
It is vital that the House directs its mind to these questions because they cannot be left at large. The answers that the House chooses to give should be embodied in legislation.
§ Mr. Maginnis
I am surprised that the right hon. and learned Member for Warley, West (Mr. Archer) should move such a naive clause. He has clearly demonstrated that he does not fully understand the position in which members of the security forces find themselves when facing dedicated armed terrorists whose single objective is to kill and maim members of the security forces and the civilian population with whom they disagree. The wording of the new clause is so naive that it verges on being insulting to those who must face armed terrorists day in and day out.
I shall describe a situation with which I am quite familiar. Let us suppose that members of an army patrol stop a car in the middle of the night and realise that three armed terrorists are getting out of it. They must quickly decide what level of force should be used to apprehend those terrorists. As the right hon. and learned Gentleman said, that is laid down in the yellow card. They will use the minimum force which is necessary to effect an arrest. This new clause would bind them in their action, and that is especially illustrated in subsection 10 (b)(ii):the use of such force as is necessary to achieve the lawful apprehension of a person whom the person using such force has reasonable cause to believe poses a threat of imminent death or serious injury to himself or another person.Does that mean that a soldier must wait until he can decide whether a person carrying a gun will run away or turn round and open fire on him? That subsection would pose that question in the mind of a member of the security forces. It is not something with which we should bind our soldiers or policemen.
What does "threat of imminent death" mean? If I see a terrorist with a gun, I know that he intends death to members of the security forces or innocent civilians. What is "imminent death"? Is it within the next five minutes, the 347 next hour or the next week? I have a strange feeling that the right hon. and learned Gentleman would suggest that it is not a period within the next week or couple of weeks, but if you or I, Mr. Deputy Speaker, were likely to be the victim of a terrorist within the next week or two you and I would consider that death was imminent.
§ Mr. Archer
I welcome the hon. Gentleman back into our counsels. However, if we are debating which of us is the more naive, will the hon. Gentleman tell the House how the formulae in the new clause differ from the decisions which members of the security forces have to make under the present law?
§ Mr. Maginnis
When members of the security forces fire their weapons— the right hon. and learned Gentleman hinted at this—they intend to kill the person at whom they are firing. They do not fire them to warn or injure. There is good reason why that should be the case. A weapon is designed to kill the enemy. If it is used in any other way, it becomes a danger to the person using it, those, if they are members of an Army patrol, with whom the person firing it is patrolling, and to members of the public.
To draw up this strange criterion that we must expect our soldiers to use force which is not lethal in a situation such as is outlined in the new clause is to ask them to endanger themselves and other members of the public.
§ Mr. Mallon
As to what the hon. Gentleman said about the wording of the clause, is he saying that, in circumstances where these conditions do not apply, it would be right to use that lethal force? Either it should be constrained by the conditions laid down in the new clause, or, if it is not, it must surely be wrong to use lethal force. I am trying to establish whether that is what the hon. Gentleman is saying.
§ Mr. Maginnis
I do not think that the hon. Member for Newry and Armagh (Mr. Mallon) is in any doubt as to what I am saying. I am not suggesting that force, other than the minimal amount that is required to effect an arrest—I am talking about terrorists, as, I presume, the right hon. and learned Member for Warley, West was—should be used.
The trouble with the new clause is that it clearly states that it is not reasonable to use lethal force unless it is believed that death is imminent. What is "imminent"? An armed terrorist who escapes will be back next week, the week after or some time in the foreseeable future. In such a situation death will be imminent for a member of the public.
It is wrong to try to define the basis on which soldiers should use maximum force. That would be disadvantageous, and I implore the House not to give any consideration to a means of tying the hands of the security forces in protecting themselves and members of the public.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
I listened with interest to the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis). He appeared to define the new clause in terms of a member of the security forces being faced by an armed terrorist. In those circumstances, any member of the security forces would, under the new clause, be more than justified in using lethal force. Anyone faced with an armed terrorist has a reasonable apprehension of immediate death.
However, the new clause seeks to deal with the circumstances that arose in the McElhone and Jones case 348 where McElhone, a completely innocent person, refused to stop when summoned to do so by a soldier. He saw the soldier's gun, was scared and ran away. Bang—he was shot like a rabbit. That is the situation with which we are trying to deal. McElhone was unarmed and there was no evidence that the soldier felt that he was under any threat at the time. There was no evidence that McElhone. if he had been known to the soldier, had been involved in any terrorist activity, and yet he was shot.
That is the situation with which the Standing Advisory Commission on Human rights was most concerned when it issued its press statement on the Bill. It said :No opportunity is taken in the Bill to amend the law on the use of reasonable force as it applies to the use of firearms by the police and other members of the security forces. The circumstance in which resort may be had to the lawful use of firearms remains vague and unsatisfactory.That was the situation after our debate in Committee.. The Minister of State was prepared to leave the law as it was — vague and unsatisfactory. Therefore, Labour Members, and my right hon. and learned Friend the Member for Warley, West (Mr. Archer) in particular, sought to take up the argument of the Standing Advisory Commission on Human Rights and to introduce a clause which properly and carefully protected the security forces in the reasonable use of force, and lethal force if necessary, in all circumstances when they could reasonably apprehend that they, or people in the area, were likely to suffer serious injury or death from terrorist activity We did not want to go back to the McElhone situation, which was unreal and unnecessary.
§ Ms. Clare Short
Does my hon. Friend agree that the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis) laid great stress on not liking the use of the word "imminent" in relation to violence from a terrorist? That suggests that he would support the armed forces shooting anyone known to be in possession of a weapon. whether they intended to use that weapon in one, two or six weeks. I cannot believe that lie really intended that the armed forces should shoot whether or not there was any danger of an individual being harmed by that weapon. That was the import of his speech, and that is a licence to a shoot-to-kill policy.
§ Mr. McNamara
I accept my hon. Friend's point. I thought that the hon. Member for Fermanagh and South Tyrone went too far when he made that point. In retrospect, I do not think that he would have meant it to apply in such broad circumstances. Most of us here would consider it reasonable for a member of the security forces to shoot on seeing a person suspected of terrorism carrying a lethal weapon, in an area where there is a good deal of terrorism, if, after apprehension, the person ran away. But one could not shoot on the basis that Mr. X might or might not have a rifle in his house which might or might not be used on some occasion. If that is what the hon. Gentleman was saying, I am sure that no one would reasonably accept that as an interpretation of a proper use of lethal force under any circumstances.
§ Mr. McNamara
I am grateful to the hon. Gentleman. He has now qualified his position as that which I originally described as the circumstances in which my right hon. and learned Friend the Member for Warley, West drafted the new clause.
§ Mr. Maginnis
I want to make it clear that in the McElhone case, with which I am familiar in so far as I used to teach in the area where McElhone lived, the soldier was brought to trial having been charged with rashly and irresponsibly causing McElhone's death. He had acted outside the guidelines laid down for members of the security forces. In that case the court accepted that the soldier had reasonable grounds for suspecting that McElhone was a terrorist, and he was released. But in another case, which has not been quoted, a similar situation occurred and the soldier was found guilty of acting irresponsibly. He is now serving a sentence of imprisonment for that.
Therefore, the rules by which soldiers and other members of the security forces are guided are adequate and responsible. The civil law is adequate to deal with any member of the security forces who acts irresponsibly or maliciously outside the guidelines. My point was that I did not want this new clause, which would cloud, not clarify, the issue.
§ Mr. McNamara
That was an interesting intervention. The two cases which the hon. Gentleman cited show the extent of the confusion over this important matter. It was said in the McElhone case that, because of the area in which the incident took place, one could reasonably accept that any person refusing to stop could be shot. It was, so to speak, bandit country—a matter to which my right hon. and learned Friend the Member for Warley, West referred.
The hon. Gentleman has now accepted that he did not mean the extension of the case that he put forward. Secondly, he accepted that there must be a reasonable use of force in such instances. Accepting that there is uncertainty in the law, the logic would be to follow my right hon. and learned Friend's attempt to define the circumstances in which lethal force can be used.
Finally, let me deal with the question of the yellow card. When my right hon. and learned Friend said that the instruction was only to use aimed shots and that that therefore meant shots to kill, not warning shots or shots to wound, the Minister of State appeared to shake his head. In Committee we outlined what we understood to be the contents of the yellow card. As my right hon. and learned Friend said, it is difficult to understand why it is a classified document. Any citizen should be properly entitled to know the orders under which members of the security forces are acting in their proper role of seeking to apprehend terrorists. That is a matter of common sense civil liberties.
Therefore, if the Minister of State does not accept what my right hon. and learned Friend said, I hope that he will state his reasons. More importantly, when he has finished talking to the Secretary of State, I hope that he will not only deny what my right hon. and learned Friend said, but produce the yellow card so that the House and the country may know exactly the circumstances in which our people are operating.
§ Mr Mallon
First, I should like to commend the right hon. and learned Member for Warley, West (Mr. Archer) for trying to define the circumstances in which lethal force may be used. We must consider the other side of the coin because, in the absence of a clear definition, what will happen when the type of tragic situation that we have seen so often in Northern Ireland occurs?
350 The right hon. and learned Gentleman mentioned a case that occurred some time ago and I wish to mention another, that of a young man named John Patrick Cunningham from Armagh. He was educationally subnormal and unable to hear or speak. He was terrified of any stranger. He was shot dead because, naturally enough. he ran away when stopped. That is the type of incident that we must guard against. That person was not carrying guns, nor was he in a position to know what was happening, but he had no defence in those circumstances.
Frankly, I was astounded by the line of argument put forward by the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis). I do not believe that he meant to say what we interpreted him as saying. I interpreted his remarks as suggesting that in circumstances in which there was no cause for suspicion a person could be the victim of lethal force. That is a dangerous concept, and if it proves anything to us it proves the need clearly to define the circumstances in which force can be used. We must judge what the absence of such a clear definition means because, in the light of experience in Northern Ireland, there is a danger of abuse.
I wish to specify three incidents that occurred in Lurgan, in Armagh and in a hayshed in Ballyneary. The victims in those incidents are now known as the victims of the shoot-to-kill policy, otherwise known as the Stalker affair, otherwise known as the Sampson report. Those incidents would not have occurred had there been a clearly defined set of circumstances that laid down when force could be used.
In the three cases none of the people shot was carrying weapons. It is true that in the hayshed at Ballyneary there was an extremely old weapon. However, I believe that the Sampson-Stalker report will show that that weapon was inoperative and also that the RUC members who shot those young people knew that it was inoperative. In those three cases, no one was carrying guns but, not only that, the people involved, the victims, were under surveillance for a considerable period. That has already been proved as a result of the court case that has taken place.
What happens in the absence of guidelines? What are the wider implications and the effect on the community in the north of Ireland? The effect has been enormously bad. After five years, inquests have still not been held and no substantive report has been published. There is a large question mark in people's minds hanging over those incidents. What has been the effect on the police? Anyone who speaks to senior police officers will know that there has been a bad effect because it puts the good policeman who does his job properly in the same bracket as those who take short cuts and abuse their position. Moreover, we already know from one of the court cases that one of the constables who was charged was encouraged to commit perjury by one of his senior officers. That is bound to have a corrosive effect upon the police service.
It produced a lack of confidence in the process of justice which at that time could be quantified in the north of Ireland and which has left a dangerous residue. What about the effects on the career of an extremely good, able and professional man, John Stalker? What about the effect on the career of the coroner who, rather than continue the charade that was presented to him and proceed with an inquest on the basis of information that was palpably untrue, resigned his position. Such are the effects of the absence of clear guidelines. We must prevent such cases from ever happening again.
351 We can prevent such incidents only by closing the loopholes. The only way that that can be done is by clearly defining the circumstances in which lethal force can be used. We do not have that definition in the Bill and that is a grave mistake. It leaves us wide open to a repeat of what has happened in the past.
For those reasons, I again commend the right hon. and learned Member for Warley, West for presenting the clause. I encourage him to divide the House because I believe that it is sufficiently important to justify doing so. I encourage all hon. Members to vote for the clause because it is crucial.
§ Mr. Flannery
We are discussing something that is extremely complicated, yet, in a curious way, it is simple. I well understand the problems of the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis) who, I am sure, has faced circumstances not dissimilar from those we are discussing. I believe that the hon. Gentleman is a part-time officer and he must have been confronted with such situations.
I remember being over there myself—I am sure that many other hon. Members have had similar experiences —when a group of us, who had been out on a late night commitment and were on our way home, were stopped by a patrol at about midnight. I know what the Army is, many of us do, but I felt my back go cold when I saw the weapons around me. It was a terrible and difficult situation. People who must face such situations have my deepest sympathy. None the less, my hon. Friend the Member for Newry and Armagh (Mr. Mallon) put his finger on it when he said that there is a loophole. It is necessary that we have a form of words to which reference can be made if anything goes wrong. It should be a cautionary measure for those people who find themselves in a difficult position.
There is always somebody who is nervous on such occasions and who possibly slightly loosens the safety catch when he should not. We all know that there are people who, on occasions, are trigger happy. The expression, "shoot to kill" did not come from nowhere.
John Stalker ultimately became a casualty of his inquiries, fortunately not a mortal casualty. That report has not yet come out. Those inquiries did not come from nowhere but were the result of incidents such as those we have already discussed. However, that inquiry is not complete, but nor are the guidelines in the law complete until this loophole has been filled.
The hon. Member for Fermanagh and South Tyrone used the word "naive", but I am sure he did not mean it. This clause is a serious and honourable attempt —not emanating from one person—to close that loophole. I am sure that if the hon. Gentleman ransacked his conscience he would discover that there were circumstances in which reference could have been made to such a clause—such incidents take place closer to him than to many of us. He is aware that, no matter what differences exist between us, we profoundly worry about the colleagues whom I am happy to see on the Bench behind me. I always make a point of saying that.
I commend this clause to the House. It is sensible and necessary and an honest addition to the Bill. I believe that we should divide the House, but I hope that the clause will be accepted, possibly without a Division.
§ Mr. Alton
The problem in a debate of this kind is that without the advice of Stalker or the Sampson commission, 352 and even with the Baker report, it is difficult to make a judgment on whether this new clause strikes the right balance in the safeguarding of civil liberties. I fully understand and agree with the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis). As hon. Members have already said, the number of references in the Baker report are minimal when it comes to the use of lethal force. I accept the point made by the hon. Gentleman about what circumstances might make it legitimate for the security forces to use lethal force. They are in a very difficult position.
I should not want to be the person having to make a judgment about whether he was under threat of imminent death from a member of a terrorist organisation who might just have committed a crime and be running away with a gun in his hand. Under this clause, I would have to make a decision about whether I was at risk. This matter needs further consideration and is not best left to a Division of the House. We ought to ponder it at greater length.
About 200 members of the security forces have died in the course of their duties since 1969. Probably what is needed is not legislation but more appropriate machinery which we should use to deal with cases in which it is alleged that the security forces have caused death or serious injury.
The hon. Member for Kingston upon Hull, North (Mr. McNamara) talked about the findings of the Standing Advisory Commission on Human Rights. I agree with what he said about the secrecy surrounding the use of the yellow card. That matter ought to be more open and we need to understand more about the circumstances in which it is permissible for the security forces to use force. The standing commission noticed a striking contrast between the investigation of deaths caused by the security forces in Great Britain and those caused in Northern Ireland. In Great Britain there is a reasonably quick procedure which involves the suspension from duty of the officers involved. There is then a report to Parliament and a fairly rapid submission of a report to the Director of Public Prosecutions.
By contrast, in Northern Ireland there have been complaints that the legal representatives of the relatives of dead civilians have been unable to secure access to papers or evidence. There have been accusations of irregularities in the police files relating to such cases. The ninth report of the Standing Advisory Commission on Human Rights says:While the circumstances in Northern Ireland do differ substantially from those in London (for example, as regards obtaining reliable evidence), there is nevertheless no sufficient reason why the deaths of civilians at the hands of the security forces … should not only be treated but also be seen to be treated as a matter of equally urgent and immediate concern.It is my strong view that only an independent standing tribunal with investigatory functions can depoliticise the process of investigation. Such a tribunal would be required to investigate every case in which the use of force by the security forces has resulted in serious injury or in death. The tribunal should have a legally qualified chairman. Its members should be appointed for a fixed period of years by the Secretary of State. The tribunal would have the same powers as a tribunal of inq airy or local inquiry under the Police Act 1964. It would thus have power to compel the attendance of witnesses, insist on the production of documents, and take evidence on oath. Information could 353 be withheld from it only on the highest grounds of national security endorsed by the Secretary of State. In general, the reports of the tribunal would be published.
At present it is not the Government's practice to publish the instructions given about the circumstances in which force might legitimately be used. The relevant instructions have been seen by members of the Standing Advisory Commission on Human Rights. In paragraph 24 of its ninth report it concluded :We were impressed by the strictness of these instructions. If obeyed by the security forces, no member of the law-abiding public need be concerned for his safety and neither need members of the security forces equally fear breaking the law. However, we feel that the circumstances in which the security forces may open fire should be a matter of greater public knowledge and public debate. If the circumstances in which the security forces are authorised to open fire were more widely known, there might be less danger of persons' lives being put at risk.That point was made by the hon. Member for Kingston upon Hull, North. Even if it is not considered appropriate to reveal the precise contents of the force instructions or the yellow card, it is at least desirable that the general conditions in which fire may be opened by the security forces should be properly and openly discussed. The Government should seriously consider making the instructions public and more precise.
Section 3 of the Criminal Law Act 1967 authorises the use of reasonable force to prevent crime, to arrest an offender or to prevent his escape. In 1984 in the Farrell case the European Court of Human Rights took the view that this provision was far too broad. More precise rules should be laid down embodying the principle that lethal force should be used only when necessary to save life or to prevent serious injury. A precise rule of this type would make it easier for prosecutions to be brought against policemen or service men charged with illegitimate killings.
For those reasons, the new clause does not entirely fulfil the criteria that I have laid before the House. That is my view and the view of my right hon. and hon. Friends. I am reluctant to vote with the Opposition on this clause, and hope that they will not press it to a Division.
§ Mr. Scott
Let me say at the outset that I recognise that the use of force, and especially lethal force, by the police and the military in Northern Ireland is a legitimate ground for concern. Any incident involving death or serious injury in which the security forces in Northern Ireland are involved is fully and impartially investigated by the RUC and, as a matter of course, the papers have to be sent to the Director of Public Prosecutions.
In this debate we have heard the views of the hon. Members for Fermanagh and South Tyrone (Mr. Maginnis), for Kingston upon Hull, North (Mr. McNamara), for Newry and Armagh (Mr. Mallon) and for Sheffield, Hillsborough (Mr. Flannery). Those views illustrate the different perceptions that people have about this very difficult situation.
The right hon. and learned Member for Warley, West (Mr. Archer) set out some admirable and uncontentious principles. However, the matter comes down to a single, simple question : should we rely on the law—"vague and unsatisfactory" is how it was described by the hon. Member for Kingston upon Hull, North—or should we seek to spell out in statute what the law might be and define it much more tightly than it is at the moment? The 354 right hon. and learned Member for Warley, West mentioned the principle of proportionality. While not saying that that principle has nothing to do with the matter before the House, again the question must be, should we try to spell it out in statute, or should we leave it to the courts to decide that the action taken was reasonable in all the circumstances?
Even the new clause shows how difficult it is to specify in legislation guidelines on the use of lethal force that would cover every possible eventuality. The present law gives the courts the freedom to take account of all the circumstances and to reach a proper judgment on whether the use of force was reasonable. If we attempt to specify the guidelines, as this new clause attempts to do, it tends to expose the difficulties of going down that road.
As it stands, I do not think that the clause would remove all areas of ambiguity from the law on the use of lethal force. In any case, on a matter of principle, the use of force should continue to be governed, as it is at the moment, by section 3 of the Criminal Law Act (Northern Ireland) 1967. That Act provides that a person may use such force as is reasonable in the circumstances for the prevention of crime in effecting or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large. That rule applies to the exercise of ordinary police powers and to powers under the emergency legislation. It is also the basis of the Criminal Law Act 1967 which applies in England and Wales.
In responding to what has been an interesting debate, I have to stand absolutely on that point of principle. It is right that members of the security forces exercising emergency powers should be bound by the normal rule of law in relation to the use of force. That was the fundamental question put to us by the right hon. and learned Member for Warley, West. Should they be treated differently because of the special powers that they have and the special situation that confronts them in Northern Ireland? To that question I have to give an unequivocal yes.
This new clause would apply one rule to the emergency powers and another to the ordinary powers. For that reason, it would be inappropriate to legislate on this matter in the Bill. I advise the House not to give the new clause a Second Reading.
§ Mr. Mallon
Is there not something contradictory about the position? The powers in the Bill and in other amendments to the 1978 Act are tested by the touchstone of "reasonable grounds" for arrest, search or stopping people. The essence of the new clause is that it puts the onus on the person using the force to have "reasonable cause to believe". I am sure that we all want to establish accountability, rather than having to make the decisions about whether the force was reasonable. In terms of accountability, and of consistency with the changes that are made in the rest of the Bill, the onus of having to have reasonable cause is much more powerful and effective than having to define the reasonableness of the force used.
§ Mr. Scott
I believe that in standing firm on section 3 of the Criminal Law Act 1967 we were absolutely following that principle. It is for the court to decide whether the actions were reasonable in the circumstances. That is the point of principle on which I stand. Even the new clause shows how difficult it is to define precisely what alternative arrangements should be put in place. The new 355 clause does not remove all ambiguity from the law. The present position has worked well, and the I-louse would he wise to reject——
§ Mr. McNamara
I am sorry to interrupt the Minister in the course of his penultimate sentence. Will he address his mind to the point made by my right hon. and learned Friend the Member for Warley, West (Mr. Archer), the hon. Member for Liverpool, Mossley Hill (Mr. Alton) and myself about the yellow card and information about it?
§ Mr. Scott
If I have not done so, it is because I believe that the instructions on the use of force by the security forces are not directly relevant to the debate. This debate is about the law that should apply. not about the guidance that is given by the Chief Constable who is responsible for the operations of his force, or about the instructions that the Army Council gives to its soldiers on how best to stay within the law. Those are matters of operational concern for those involved in the operations of the police and the Army respectively. This debate is about the law, not about the guidance that is given on how to stay within it.
§ Mr. Maginnis
Does the Minister agree that he is making a mistake about the yellow card? It is merely a restricted document—not a confidential or highly secret one. It would allay many of the fears that have been expressed today if the contents of that yellow card were made known. I do not doubt that other hon. Members have seen it. I, too, have seen it, and I think that nothing would be lost by allowing the public to know about the extremely strict rules under which members of the security forces must operate.
Does the Minister agree with me that matters that are not pertinent to the debate have been raised today? The problem that someone may be nervous or trigger-happy will not be remedied by this type of legislation.
§ Mr. Scott
The yellow card is not my responsibility but that of the Ministry of Defence. I believe that I am right in asserting that the contents of the yellow card are not at issue. What is at issue are the laws governing the use of force and lethal force. My contention is that it should be for the courts to decide whether the force that is used is reasonable in all the circumstances. Therefore, I must advise the House to reject the new clause.
§ Question put. That the clause be read a Second time:——
§ The House divided: Ayes 82, Noes 185.357
|Division No. 140]||[7.15 pm|
|Adams, Allen (Paisley N)||Corbett, Robin|
|Archer, Rt Hon Peter||Corbyn, Jeremy|
|Ashton, Joe||Cunliffe, Lawrence|
|Atkinson, N. (Tottenham)||Cunningham, Dr John|
|Barron, Kevin||Dalyell, Tam|
|Beckett, Mrs Margaret||Davis, Terry (B'ham, H'ge H'l)|
|Benn, Rt Hon Tony||Deakins, Eric|
|Bermingham, Gerald||Dewar, Donald|
|Boyes, Roland||Dixon, Donald|
|Brown, Hugh D. (Provan)||Dormand, Jack|
|Callaghan, Jim (Heyw'd & M)||Dubs, Alfred|
|Campbell-Savours, Dale||Eastham, Ken|
|Canavan, Dennis||Edwards, Bob (Wh'mpt'n SE)|
|Clark, Dr David (S Shields)||Fields, T. (L'pool Broad Gn)|
|Clay, Robert||Flannery, Martin|
|Clelland, David Gordon||Foot, Rt Hon Michael|
|Clwyd, Mrs Ann||Foster, Derek|
|Cocks, Rt Hon M. (Bristol S)||Garrett, W. E.|
|Cohen, Harry||Golding, Mrs Llin|
|Cook, Frank (Stockton North)||Hamilton, James (M'well N)|
|Hamilton, W. W. (Fife Central)||Park, George|
|Hardy, Peter||Parry, Robert|
|Hattersley, Rt Hon Roy||Pike, Peter|
|Haynes, Frank||Powell, Raymond (Ogmore)|
|Heffer, Eric S.||Raynsford, Nick|
|Hogg, N. (C'nauld & Kilsyth)||Roberts, Allan (Bootle)|
|Hoyle, Douglas||Robinson, G. (Coventry NW)|
|Jones, Barry (Alyn & Deeside)||Shore, Rt Hon Peter|
|Kaufman, Rt Hon Gerald||Short, Ms Clare (Ladywood)|
|Leadbitter, Ted||Skinner, Dennis|
|Leighton, Ronald||Smith, C.(Isl'ton S & F'bury)|
|Lewis, Terence (Worsley)||Smith, Rt Hon J. (M'ds E)|
|McDonald, Dr Oonagh||Spearing, Nigel|
|McNamara, Kevin||Strang, Gavin|
|Madden, Max||Wardell, Gareth (Gower)|
|Mallon, Seamus||Wareing, Robert|
|Marek, Dr John||Welsh, Michael|
|Marshall, David (Shettleston)||Winnick, David|
|Mason, Rt Hon Roy||Young, David (Bolton SE)|
|Maynard, Miss Joan|
|Meacher, Michael||Tellers for the Ayes:|
|Millan, Rt Hon Bruce||Mr. Allen McKay and Mr. Sean Hughes.|
|Alexander, Richard||Garel-Jones, Tristan|
|Alton, David||Gower, Sir Raymond|
|Amess, David||Griffiths, Sir Eldon|
|Ashby, David||Hamilton, Neil (Tatton)|
|Ashdown, Paddy||Hargreaves, Kenneth|
|Atkinson, David (B'm'th E)||Harris, David|
|Baker, Nicholas (Dorset N)||Havers, Rt Hon Sir Michael|
|Baldry, Tony||Hawkins, Sir Paul (N'flolk SW)|
|Barnes, Mrs Rosemary||Hayhoe, Rt Hon Sir Barney|
|Batiste, Spencer||Hayward, Robert|
|Beaumont-Dark, Anthony||Heathcoat-Amory, David|
|Beith, A. J.||Heddle, John|
|Bellingham, Henry||Henderson, Barry|
|Benyon, William||Hicks, Robert|
|Biffen, Rt Hon John||Hind, Kenneth|
|Biggs-Davison, Sir John||Hirst, Michael|
|Blackburn, John||Holt, Richard|
|Blaker, Rt Hon Sir Peter||Howells, Geraint|
|Bonsor, Sir Nicholas||Jopling, Rt Hon Michael|
|Boscawen, Hon Robert||Kennedy, Charles|
|Bottomley, Peter||King, Rt Hon Tom|
|Bottomley, Mrs Virginia||Kirkwood, Archy|
|Bowden, Gerald (Dulwich)||Knight, Greg (Derby N)|
|Braine, Rt Hon Sir Bernard||Knox, David|
|Brandon-Bravo, Martin||Lang, Ian|
|Brinton, Tim||Latham, Michael|
|Brown, M. (Brigg & Cl'thpes)||Lawrence, Ivan|
|Browne, John||Lennox-Boyd, Hon Mark|
|Bruce, Malcolm||Lewis, Sir Kenneth (Stamf'd)|
|Bryan, Sir Paul||Lightbown, David|
|Bulmer, Esmond||Lilley, Peter|
|Butterfill, John||Livsey, Richard|
|Carlisle, John (Luton N)||Lloyd, Sir Ian (Havant)|
|Carlisle, Kenneth (Lincoln)||Lloyd, Peter (Fareham)|
|Cash, William||Lyell, Nicholas|
|Chapman, Sydney||McCrindle, Robert|
|Clarke, Rt Hon K. (Rushcliffe)||Macfarlane, Neil|
|Colvin, Michael||MacKay, Andrew (Berkshire)|
|Conway, Derek||Maclean, David John|
|Coombs, Simon||McLoughlin, Patrick|
|Cope, John||McNair-Wilson, M. (N'bury)|
|Couchman, James||McQuarrie, Albert|
|Dorrell, Stephen||Malins, Humfrey|
|Douglas-Hamilton, Lord J.||Malone, Gerald|
|Eyre, Sir Reginald||Maples, John|
|Fairbairn, Nicholas||Marlow, Antony|
|Fallon, Michael||Mather, Sir Carol|
|Farr, Sir John||Maude, Hon Francis|
|Favell, Anthony||Mawhinney, Dr Brian|
|Fenner, Dame Peggy||Maxwell-Hyslop, Robin|
|Finsberg, Sir Geoffrey||Mayhew, Sir Patrick|
|Fletcher, Sir Alexander||Merchant, Piers|
|Forsyth, Michael (Stirling)||Meyer, Sir Anthony|
|Forth, Eric||Miller, Hal (B'grove)|
|Fry, Peter||Mills, Iain (Meriden)|
|Mills, Sir Peter (West Devon)||Spencer, Derek|
|Mitchell, David (Hants NW)||Squire, Robin|
|Moate, Roger||Stanbrook, Ivor|
|Moynihan, Hon C.||Stanley, Rt Hon John|
|Mudd, David||Steel, Rt Hon David|
|Nicholls, Patrick||Stern, Michael|
|Norris, Steven||Stevens, Lewis (Nuneaton)|
|Onslow, Cranley||Stewart, Andrew (Sherwood)|
|Oppenheim, Phillip||Sumberg, David|
|Ottaway, Richard||Taylor, Matthew|
|Page, Sir John (Harrow W)||Taylor, Teddy (S'end E)|
|Page, Richard (Herts SW)||Temple-Morris, Peter|
|Pawsey, James||Terlezki, Stefan|
|Peacock, Mrs Elizabeth||Thomas, Rt Hon Peter|
|Powell, William (Corby)||Thompson, Patrick (N'ich N)|
|Powley, John||Thorne, Neil (Ilford S)|
|Price, Sir David||Thornton, Malcolm|
|Pym, Rt Hon Francis||Townend, John (Bridlington)|
|Raffan, Keith||van Straubenzee, Sir W.|
|Raison, Rt Hon Timothy||Waddington, Rt Hon David|
|Rhodes James, Robert||Wainwright, R.|
|Rhys Williams, Sir Brandon||Walden, George|
|Ridley, Rt Hon Nicholas||Walker, Bill (T'side N)|
|Ridsdale, Sir Julian||Wallace, James|
|Rippon, Rt Hon Geoffrey||Waller, Gary|
|Robinson, Mark (N'port W)||Wardle, C. (Bexhill)|
|Rossi, Sir Hugh||Watson, John|
|Rowe, Andrew||Watts, John|
|Ryder, Richard||Wells, Bowen (Hertford)|
|Sackville, Hon Thomas||Wells, Sir John (Maidstone)|
|Sainsbury, Hon Timothy||Wheeler, John|
|Sayeed, Jonathan||Winterton, Mrs Ann|
|Scott, Nicholas||Winterton, Nicholas|
|Shaw, Sir Michael (Scarb')||Wood, Timothy|
|Shelton, William (Streatham)||Woodcock, Michael|
|Shepherd, Colin (Hereford)|
|Silvester, Fred||Tellers for the Noes:|
|Skeet, Sir Trevor||Mr. Tony Durant and Mr. Michael Neubert.|
|Smith, Tim (Beaconsfield)|
§ Question accordingly negatived.