§ 6.32 p.m.
§ LORD WINDLESHAM rose to move, That the Detention of Terrorists (Northern Ireland) Order 1972, be approved. The noble Lord said: My Lords, I beg to move the Order standing in my name on the Order Paper. In introducing this Order I am conscious that its provisions may cause unease in the minds of some noble Lords, in particular those who have been concerned with the administration of justice and those who have devoted much of their time to upholding personal liberty. It is particularly important, therefore, that I should explain the circumstances that have given rise to this Order. All along there has been in our mind the necessity to strike a balance between the right of the individual citizen to his liberty and the need to take steps to safeguard the lives and homes of people in Northern Ireland, for whose protection we have a responsibility.
§ When this Government took over in Northern Ireland earlier this year the Secretary of State for Northern Ireland assumed the powers that had been vested in Northern Ireland Ministers under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 and its Regulations. Among the powers were those under Regulations 11 and 12 which permitted detention and internment of persons by the Executive. My right honourable friend the Secretary of State for Northern Ireland decided not to exer- 434 cise the power of internment. Indeed, he was able to release very substantial numbers of internees—something in excess of 700 people. He recognised, however, that the circumstances of Northern Ireland were such that the normal processes of law were inadequate—I shall say more on this later. My right honourable friend therefore reluctantly made use of—and made sparing use of—the power then conferred by Regulation 11 of the Special Powers Act to detain persons suspected of being terrorists. At the same time, we recognised the emotiveness of this issue, a primary source of grievance on the minority side, and were anxious to find a system that could be put in its place.
§ After much consideration the Government decided that on such a crucial matter expert and objective advice should be sought. Consequently, a Commission was set up, under the chairmanship of the noble and learned Lord, Lord Diplock, to consider what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations. Since the Commission needed time to investigate and report, the Government were faced with the alternatives either of continuing to operate the provisions of the Special Powers Act until the Commission had reported and any recommendations could be embodied in law or to devise some interim measure which would remove some of the most objectionable features of the regulations made under the Special Powers Act. As I explained on Tuesday, we chose the latter course of action. The Detention of Terrorists (Northern Ireland) Order 1972 was made by Her Majesty the Queen in Council on November 1, and came into effect on November 7.
§ The Commissioners appointed under the Order, of whom there are three, each with judicial experience, began hearings on November 10. All cases of men already interned or detained under Regulations 11 or 12 of the Special Powers legislation, toalling 242 persons in all, were referred to the Commissioners by the Secretary of State, in addition to any new cases arising since that date. In the last month—that is, from November 7 until yesterday, December 6–43 interim custody orders have been signed, and the Commissioners have heard a total of 104 435 cases. This has resulted in 37 person being released, and 67 persons being detained, with 13 cases adjourned for further hearing. It has therefore been possible in Article 12 of the Order before your Lordships this evening to revoke those parts of the Special Powers Acts which provide for detention and internment. Internment, as such, is now a thing of the past—and this cannot be said too often or too loudly.
§ My Lords, the remainder of the Order provides a system in which a case against an alleged terrorist is heard by an independent Commissioner whose decision, subject to appeal, is final. This is a far cry from internment by the Executive. It may nevertheless be asked: why is a procedure for detention needed at all? There is, first of all, the problem of intimidation of witnesses. I do not think I need describe specific instances to indicate the prevailing climate of fear. There have been cases when witnesses have been killed, and others when they have been beaten up. Is it really reasonable to expect a person who witnesses an act of terrorism to go to the police; to make a statement; to give evidence before the accused in a court of law, knowing that by so doing there is a risk that he might be murdered or that his wife or children might be harmed; or, if he is lucky enough to escape personal injuries, that he might suffer no more damage than his home being attacked? Nor can evidence be given in open court without prejudicing the sources of information, including intelligence services, informers, or any other source from which information may come.
§ Then, my Lords, there is the problem of dealing with those who organise terrorism, those who plan or direct operations but who do not themselves engage in terrorist acts—in firing the shots or in planting the bomb. In theory, they might be charged with conspiracy or membership of illegal organisations, but noble Lords will know the difficulty of obtaining convictions for such charges. The Order is drafted so that hearings before the Commissioners are in private, that the respondent and his counsel may be excluded during parts of the proceedings, that the normal rules of evidence need not be applied, and that hearings shall be before a Commissioner who has held judicial office or is a bar- 436 rister, advocate or solicitor of at least ten years' standing in the United Kingdom. I must emphasise that the primary aim of the appropriate authorities is, wherever possible, to bring alleged terrorists before the courts.
§ If there are strong grounds for believing a person to have been implicated in terrorism, but the nature of the evidence is such that, for reasons that I gave earlier, it cannot be adduced in a normal court of law, an application may be made to the Secretary of State under Article 4 for an interim custody order. If granted, this will permit a person to be detained for a maximum of 28 days, although provision is made under Article 9 for the Secretary of State to release him earlier. If a person is referred to a Commissioner, the person must be so notified in writing, and he may continue to be detained until a Commissioner has determined his case. In addition, Part III of the Schedule requires a respondent to be served, not less than three days before the hearing, with a statement in writing as to the nature of the terrorist activities which are to be the subject of the hearing. This is another substantial improvement on the previous system, as is his right to be represented by counsel or a solicitor.
§ Article 5 of the Order sets out the matters on which the Commissioners have to satisfy themselves. Noble Lords may notice that there are two counts: first that the person has been concerned in the commission or attempted commission of any act of terrorism or the direction, organisation or training of persons for the purpose of terrorism; and, second, that his detention is necessary for the protection of public. Both of these conditions must be satisfied. In this way it can be said that the Commissioners do not exercise a punitive role but exercise a preventive role.
§ At this stage it may be convenient to say a few words about the definition in the Order of terrorism. Your Lordships' Special Orders Committee pointed out that this is a term new to the Statute Book. It is important that the definition should be wide enough to cover all acts of terrorism with which we are so familiar in Northern Ireland, yet not so wide as to be unacceptable in a Statute. Political ends have been included as an ingredient, but we have also thought it necessary to 437 add the inclusion of any use of violence for the purpose of putting the public, or any section of the public, in fear. I do not believe that the definition is so wide as to put persons who are not terrorists at risk. There are the further safeguards. The House will accept that it is not likely that my right honorable friend the Secretary of State would make an interim custody order in inappropriate circumstances; nor will there be doubt in the minds of the Commissioners about what is intended by the definition of terrorism in this Order. Paragraph (2) of Article 5 provides that if a Commissioner is satisfied on the two grounds I have already mentioned, he shall make a detention order or shall direct the person's discharge. A Commissioner's decision is final, subject to an appeal by the respondent.
§ I should also draw your Lordships' attention to the fact that the provisions of Part III of the Schedule also contain safeguards for the person whose liberty is at risk. I have mentioned that a person may be represented by counsel or a solicitor. He may also give and adduce evidence and make oral or written representations to the Commissioner. The Commissioner has wide powers to receive evidence; to question any person, including the respondent; to summon witnesses; to require the production of documents and cause inquiries to be made. With these wide powers and sources of information, a Commissioner will have ample opportunities to determine the truth of allegations of terrorism. In Part III of the Schedule there is one other important safeguard for a respondent. If, for any of the reasons given, evidence is heard in the absence of the respondent, the Commissioner is required, so far as the needs of public security and the safety of persons permit, to inform the respondent, or his representative, of the substance of the matters dealt with during that part of the proceedings. A Commissioner is also allowed to order the payment of costs or expenses, including legal costs, to the respondent.
§ There is, my Lords, a right of appeal. Provision is made for a Detention Appeal Tribunal to consist of three (or a greater uneven number) members who, like the Commissioners, shall have held judicial office or be a barrister, advocate or solicitor of at least ten years' standing 438 in the United Kingdom. We have been most fortunate in that a former Lord Justice of Appeal has agreed to serve as Chairman of this Tribunal. Under Article 6, a person may appeal to the Tribunal within 21 days of the making of the detention order against him. If he does so, a copy of the record of the proceedings before the Commissioners is passed to the Tribunal, and the appellant is entitled to receive a copy, excluding any part of the proceedings that took place in his absence. Provisions for the proceedings of the Tribunal are in line with those in the Commissions; fresh evidence may be permitted with the consent of the Tribunal, and the appellant may be represented by counsel or a solicitor. The Tribunal is a decisive body and, having heard the appeal, may either allow it and direct the discharge of the appellant, or dismiss the appeal.
§ I shall not describe in detail the other provisions of the Order, but I shall be glad to deal with any points which may arise in debate. This measure is not one that I take any particular pleasure in presenting to your Lordships. But most people believe that the special circumstances in Northern Ireland call for some special measures. As I have said, this system replaces internment by the Executive in the form in which it has been known in Northern Ireland for nearly half a century. The Order substitutes independent legally qualified persons to assess allegations of terrorism in place of the Executive, and gives those persons the necessary powers to enable them to reach the truth. This is a real advance.
§ My Lords, there is a temptation to think that any departure from established judicial principles must be a retrograde step. But terrorists in Northern Ireland, by using fear and brutality, torture and murder, have created conditions in which the courts cannot always operate effectively. We cannot, if we have any compassion or any sense of responsibility for the people of Northern Ireland, allow justice to be left on one side and countless innocent people put in physical danger or fear. The purpose of this Order is to get away from internment, which it does; to provide an alternative procedure where the courts cannot meet an acknowledged threat to society; and to do so in a way which permits the maximum possible safeguards to individual liberty. It 439 is because I believe that the Order represents a step forward and, consequently, a step towards an eventual settlement in Northern Ireland, that I ask your Lordships—and with some confidence—to approve it this evening. I beg to move.
§ Moved, That the Detention of Terrorists (Northern Ireland) Order 1972, be approved.—(Lord Windlesham.)
§ 6.50 p.m.
§ LORD DIPLOCK
My Lords, I am very grateful to the noble Lord, Lord Shackleton, for permitting me to interrupt at this stage in the debate. I have spent most of the past seven weeks examining the nature and consequences of terrorist crime in Northern Ireland. I have nevertheless hesitated whether or not to intervene at all. But the Commission of which I had the honour to be Chairman has now presented its unanimous Report to the Secretary of State. Before it is published, it would be quite improper for me to anticipate its findings; and anything that I say to-day is based upon my personal experiences, not all of which could be shared by my colleagues on the Commission. It is said on my personal responsibility alone. It is not my intention to advance any arguments for or against this Order, but I thought it might be helpful for a consideration of its merits if I were to explain how, as it appears to me as a lawyer, the procedures contemplated by the Order differ in legal character from the former procedures under Regulations 11 and 12 which it replaces, and how they would operate in practice in the present pattern of terrorist violence in Northern Ireland.
To a layman, as to a lawyer too, it is easy to over-simplify; to suppose that in an emergency which threatens the life of the nation there are only two procedures for dealing with politically motivated crime: on the one hand, there is what is commonly thought of as internment, the imprisonment by arbitrary order of the Executive of those whom the police suspect of being a danger to the State; on the other hand, there is trial and sentence by a regular court of criminal justice applying ordinary rules of evidence and procedure to those who are proved actually to have committed a specific criminal offence. But these are two extremes. Between them there lies 440 a whole gradation of procedures of which it is no more true to say, "This is internment under another name" than it is to say, "This is trial under another name".
May I try briefly to list what seem to me as a lawyer to be the essential characteristics of trial by a regular court of criminal law, and to examine to what extent they were absent in the old Regulations 11 and 12 and are present in the new Order. First: in a trial the accused must be proved to have done something which was a criminal offence when lie did it. This was not necessary under the former Regulations. Suspicion that he might be about to do any act prejudicial to the preservation of the peace or to the maintenance of order was enough. It is necessary under the new Order, since the detention order can only he made if the Commissioner or the Detention Appeal Tribunal is satisfied that the accused has been concerned in the use, or attempted use, of violence for political ends or in the direction, organisation or training of other persons for the purpose of so using violence. Any act which falls within this description is a well-established offence in criminal law, quite apart from any state of emergency.
Second: in a trial the guilt of the accused must be proved to the satisfaction of an impartial person or a jury who are independent of the Executive. This was not the case under the former Regulations, though it is right to say that there was an Advisory Committee to hear applications by internees for their release. It was under the chairmanship of Judge Brown, a county court judge of Northern Ireland whose reputation for integrity and sturdy common sense is quite outstanding. I should do less than justice to the work of his Committee if I did not put on record my conviction that in practice it did a great deal to mitigate the arbitrary character of the Regulations. In contrast, the new Order places the responsibility of deciding whether the guilt of the accused is proved on a Commissioner, on a Detention Appeal Tribunal, the composition of which my noble friend Lord Windlesham has stated. I would also pay tribute to some of those who have been appointed as Commissioners and whose great experience in trying criminal cases is something which it is very valuable to have.
441 Third: in a trial the appropriate sentence is determined by the judge. This was not the case under the former Regulations. Under the new Order it is true the only sentence that can be passed by a Commissioner is one of detention, but it can be passed only if the Commissioner is satisfied that it is necessary for the protection of the public, which is itself a stringent test of its appropriateness. Fourth: in a trial the accused is informed in advance of what he is alleged to have done; is entitled to legal representation in the conduct of his defence, and can call evidence in support of it. None of these safeguards was provided for in the former Regulations; all are expressly laid down in the new Order.
Finally, in a trial the guilt of the accused must be proved to the satisfaction of the court by evidence adduced in accordance with the technical rules and procedures familiar in English and Northern Irish criminal courts. The new Order, in contrast, gives to the Commissioners a wide discretion to depart from these rules. Many of the rules which we follow in our criminal courts have no place in the criminal procedure of other European countries. Most European and at least some English lawyers would say that some of them are weighted too heavily in favour of the guilty and are not necessary to protect the innocent; but that is a general question which this House will no doubt debate when the Report of the Criminal Law Revision Committee on the law of evidence is considered. I express no view about it now, but this House ought, I think, to realise the practical impossibility of applying some of those rules in terrorist crime in Northern Ireland to-day.
One of those rules—the rule against hearsay—requires that the prosecution should prove the criminal acts of the accused by direct oral testimony in open court of witnesses who may speak only of what they observed themselves, not what was told about it to them by others; and they can be cross-examined widely on behalf of the accused. This is not practicable unless those who would be able to give this kind of evidence can be sure that to do so would not expose themselves or their families to risk of death or injury, or their homes to risk of destruction.
442 My Lords, let me, as dispassionately as I can, give one example of the extent to which this can be guaranteed today in Northern Ireland. A bus was hijacked by three terrorists. The driver was able to identify them. Two days before he was due to give evidence at their trial two hooded men called at his house. The door was opened by his little daughter. They asked her "Where is your Da?" She called him. He came downstairs. As he came down they shot him dead in front of the little girl, who was wounded. In common humanity one has to use some method of proving guilt which does not risk disclosing to any member of the terrorist organisation the identity of those who provide the security authorities with information about terrorist crimes.
What this necessarily means is that the Commissioners must rely upon reports and information received from sources the identity of which cannot be disclosed to the accused or his lawyer, or indeed to the Commissioners themselves; and secondly, that there must be excluded from those reports any detailed information from which the accused might be able to guess at the source. This would not prevent the Commissioners from putting questions to the police officers by whom the reports were obtained, directed to ascertaining the reliability of the source, short of disclosing its identity, although such questions might sometimes have to be put in the absence of the accused.
I made it my business to study the kind of material which is available to the Commissioners in the form in which it is presented to them. My position as chairman of the Permanent Security Commission for the United Kingdom enabled me also to inquire, as the Commissioners cannot, into the actual identity of the individual source of each report. The principal offence for which detention orders are sought is the organising, directing and training of members of terrorist organisations in the use of violence. The identity and the functions of the officers responsible for these activities in each of the battalions and companies in which the I.R.A. is organised are widely known. In each of the cases that I examined, the information that a particular person was an explosives 443 officer, training officer, quartermaster or, it may be, of a particular company, came from a number of separate sources. In one case it came from as many as 16, and it was possible to check that these sources were independent of one another and did not derive from a single common source. That check could, I think, adequately be made by putting questions which could be answered without disclosing the actual identity of any of the several sources.
In the great majority of cases the cumulative probative value of this material can, I believe, carry as much conviction of the guilt of the accused as that which I was accustomed to have after hearing the direct oral evidence given in open court on a charge on which a jury found a defendant guilty. I would not suggest that it can always be so great a safeguard against mistaken convictions as a trial in open court. Certainly since the hearing has to be in private and part of it perhaps in the absence of the accused himself, it can never appear to be so. But I am satisfied that a procedure of this kind can be worked in practice so as to make the risk of unjust detention very small indeed; and against this risk there has to be balanced the risk to the lives of witnesses who would be involved in public trial by ordinary procedure of some terrorist crimes in courts of criminal law.
§ 7.6 p.m.
§ LORD GARDINER
My Lords, I speak as one who in general supports the policy of the present Government in relation to Northern Ireland. I do not trouble your Lordships' House very much in these days, but I thought that as I am the only surviving Member of Parliament who was a member of the Committee of Privy Counsellors who had to inquire into matters in Northern Ireland a little time ago and had to say that what was being done there was contrary to the law of England and contrary to the law of Northern Ireland and must be stopped, I should perhaps say something this evening.
In the first place, I think one cannot approach legislation of this kind, whether it is primary legislation or subordinate legislation, without considering 444 those aspects of human rights which are law. Whether the Universal Declaration of Human Rights is part of the customary law of nations or not, we are, of course, bound by the Geneva Conventions and by the European Convention on Human Rights, but I think we should be well advised to pay heed in addition to the general temper of human rights which is happily, I think, increasing in the world, particularly in the developed countries. Last week saw the first conference called by the new British Institute of Human Rights whose constitution is in itself an advantage to this country and of whom I have no doubt we shall hear a good deal in time to come. This week, on Monday and Tuesday and last night, there were meetings in this building organised by the United Nations Association of those of informed opinion on three human rights subjects—immigration, the dependent territories and the status of women.
One of the things I think we must recognise is that all those concerned with human rights are no longer prepared to accept the old doctrine, very useful to Governments, that it does not matter how a Government treats its own citizens because it is a domestic matter which other countries and other people are not entitled to criticise. On Monday, Amnesty is starting a year's campaign against the increasing organised use of torture by Governments, both in the East and in the West, of their prisoners, particularly, though not exclusively, prisoners on religious or political grounds. This is an example of a case in which it is quite impossible for any country rightly to say, "This is of purely domestic concern".
Certainly a couple of years ago the Christian Churches held a consultation representative of all the Christian Churches, and among their conclusions was this:There is today a growing concern with the frequency with which some authorities resort to the torture or inhuman treatment of political opponents or prisoners held by them. There exists at the present time in certain regions of the world, regimes using systematic methods of torture carried out in the most refined way. Torture itself becomes contagious. The expediency of the moment should never silence the voice of the Church authorities when condemnation of inhuman treatment is called for.445 In the same year at the World Conference on Religion and Peace, which was a conference representative of all the world's religions, they said:The torture and illtreatment of prisoners which is carried out with the authority of some Governments constitute not only a crime against humanity but also a crime against the moral law.It is bearing in mind the provisions of human rights that I approach this Order to-night. One thing which it expressly covers is how prisoners who have not been convicted of any offence are to be treated. The first observation I must make is that these regulations are, of course, an immense improvement on the existing situation, from the point of view of human rights. I need not go into detail about that, because the noble and learned Lord, Lord Diplock, has made it clear how great an improvement they are. We have, in effect, returned to the rule of law. I am particularly glad to note that so far as the position of prisoners is concerned, whether detained for the first 28 days or thereafter, their conditions are to be the equivalent of the condition of prisoners on remand. My Lords, that being so, I do not propose to take up your Lordships' time further—although there are points of detail—because an Order of this kind cannot be amended.
There is just one point to which I would refer. The noble Lord, Lord Windlesham, said on Tuesday:Certainly this is intended as an interim measure until the basic problem can be considered in the light of the Diplock Commission's Report when that is received."—[OFFICIAL REPORT, 5/12/72, col. 237.]Both as to that and as to any reconsideration of the details of this Order, there is one thing which disappoints me, and that is this. In the type of situation that we have in Northern Ireland, as in other emergency conditions, the view has been expressed by the International Commission of Jurists—of which I must make it plain that I am both a member and on their executive committee—that Governments may be well advised to allow on an emergency court or tribunal of some outside representation. They have specifically said this about Northern Ireland; they have given the same advice to the Government of Bangladesh in relation to war crime trials which they are contemplating and have urged them not to repeat Nuremburg in simply having a trial of the vanquished by the victors.
446 I was glad to notice that on Tuesday both the noble Lord, Lord Windlesham, and my noble friend Lord Shackleton, made complimentary references to the article or thesis by Professor Twining and Professor Palley and other members of Queen's University, Belfast. On page 26 of that document, dealing with the constitution of emergency courts, the learned authors said:This is clearly dependent on the wider issue of the control of security of law and order, but insofar as Northern Ireland is coscerned there would be clear advantages in ensuring the impartiality of any emergency court by the appointment of an external presiding judge, whether from Britain, Europe, or the Commonwealth, and in providing that all cases should be heard by a Bench of at least two judges or magistrates.I do not know—perhaps the noble Lord can tell us—what number of judges it is proposed to have. For obvious reasons, I do not think that a Bench of two judges is ever very satisfactory; one would rather hope that there might be three. But if we are to have emergency courts and when the Government have time to review the existing Order, perhaps they will take this point into account.
The Order provides that all the Commissioners and all the members of any review tribunal must be United Kingdom lawyers. I believe that it would increase our repute both with the European Commission of Human Rights, and possibly too in America, if it were otherwise. I am not saying that in every tribunal the Commissioners should always have some external judge there at all, but if that limitation were removed, it would still be open to the Secretary of State to have nobody but United Kingdom lawyers. But why bind himself in advance? In the Commonwealth we have some judges not only of high standing in the Commonwealth itself but internationally well regarded. If one of them was available, I should have thought that it might be a good thing to have him as a member of an emergency court and possibly even of a tribunal review. I hope, therefore, that the Government will reconsider this point. My Lords, subject to those points—and properly concerned as I am for human rights—in the conditions which exist in Northern Ireland, apart from matters of detail, I see no objection to this Order.
§ 7.17 p.m.
§ LORD KILBRACKEN
My Lords, in so far as this Order enables the Government to depart from the policy of internment, which has been the most serious mistake they have ever made and which in particular has prevented any conversation between them and the S.D.L.P., this Order represents some small progress forward and to that extent is to be welcomed. It is replacing internment and I should be grateful if the noble Lord could tell us now what is going to happen to those who are still interned under the previous regulations. I assume that in every case either they will be released or interim custody orders will have to be issued and the procedure set forth in this Order will have to be followed.
My noble and learned friend Lord Gardiner was able to say that he thought we had in effect returned to the rule of law. It is, of course, a step in that direction, but I wonder whether that view is not something of an exaggeration. There are certain aspects of the Order which still cause me very great apprehension. In the first place, it is clear that a suspect may be detained for 28 days without his case even being referred to a Commissioner. It cannot be said that this is a return to the rule of law because normally in any other part of the United Kingdom a person must be charged as soon as he is apprehended. Under this Order he can be detained, as I say, for a month without even being told anything about his alleged offence. If during those 28 days his case is referred to a Commissioner, the adjudication may be delayed for an indefinite period. It is nowhere laid down in the Order that adjudication must take place within a certain set period of time. Under ordinary conditions of law there may be delays, but surely it is particularly important when no particular charge has been laid that the case should be heard within a set time. Then again, if a man is found guilty, or is found by the Commissioner to be a suspect and appeals, the hearing of his appeal may also be delayed indefinitely. So the person may have to wait an indeterminable length of time before he gets even the diminished justice that he is given under this Order—diminished, that is, as compared with the ordinary procedure, though it is greater 448 justice than he has been getting up until now.
What gives me greater cause for concern is the provision in paragraph 14 of the Schedule which allows the Commissioner to receive evidence,notwithstanding that such evidence would be inadmissible in a court of law.I listened as carefully as I could to the very elaborate exposition made by the noble and learned Lord, Lord Diplock, and he was comparing in great detail the differences between this procedure and the normal legal procedure. But the only point I thought he raised on this was that under this Order hearsay evidence would be admissible, and he thought that was justified. I have always accepted, much against my will, that in the present situation in Northern Ireland it may be necessary to permit certain legal procedures because of the dangers of intimidation, and for no other reason. I regret it, but I can see that the Government feel that to be necessary, and therefore I accept it. But I do not see any reason why evidence, that would otherwise be inadmissible, should be permitted unless it is in some way connected with intimidation; and I do not see why hearsay evidence, for instance, should be permitted in these courts. I am wondering—I have mentioned it in advance to the Minister—what other forms of otherwise inadmissible evidence it is intended to permit in these courts.
I have only one other small point, which would normally be a Committee point, but we shall not be having a Committee and we cannot move Amendments. It seems to me that the Order has a flaw which may be an embarrassment to the Government. Under paragraph (12) of the Schedule a respondent can be removed from the proceedings before a Commissioner owing to his disorderly conduct but he cannot be removed for disorderly conduct when his case goes up to appeal. Under Part IV (paragraph 25) only paragraphs 14 and 19 "with any necessary modifications" have any effect in relation to appeals. Therefore, I very much hope that none of the alleged terrorists who comes up before the appeal court misbehaves himself, because there is no way of removing him. That is a minor point compared with the principles involved. I hope the noble Lord will be able to 449 reassure me on the points that do worry me. If he cannot, I am afraid I must express my opposition to the Order.
§ VISCOUNT AMORY
My Lords, I remember, when it was originally decided that internment had become necessary, that the whole idea was so repugnant to many of us that we felt very unhappy about it. Most of us recognised that there could be a situation where the defence of law and order might be in such danger that such a measure might be necessary. It was very difficult for a layman to decide whether the conditions that then existed were such as to make is absolutely necessary or not, but we gave the benefit of the doubt to the Government. Even now, with hindsight, it is very difficult for a layman to judge. What internment inevitably did was to provide a new grievance which was only too easy to exploit. We must all rejoice that now internment by decision of the Executive alone is to be a thing of the past. I think we are all extremely interested in what the noble and learned Lord, Lord Diplock, had to say to us just now, and also what the noble and learned Lord, Lord Gardiner, said to us. It seems to me that the new arrangements have been devised in a spirit of great pragmatic good sense, and personally I should like to congratulate the Government on the Order they have brought before us this evening.
§ LORD SHACKLETON
My Lords, in the light of the full and careful speeches we have had, there is really little for me to say. I have never concealed my objection to internment. My objection has been, if anything, more from the practical point of view of the disastrous political consequences, which I must admit I did foresee, although once internment was introduced I knew we could not get rid of it easily. I believe that this is perhaps the most crucially serious mistake that has been made. Therefore I am bound to welcome this Order, and I can welcome it a little more warmly than my noble friend Lord Kilbracken did, although I shall be exceedingly interested to hear the answers of the noble Lord, Lord Windlesham, to some of his questions. As I see it, the problem with regard to removing the disorderly appellant does not arise, because, if I am correct, an appellant is in attendance 450 before the tribunal only when the tribunal call for his attendance. Perhaps we shall get an answer to that question.
Bearing in mind that this is a careful set of proposals and that it represents a real improvement, I certainly should not wish to oppose this Order or to recommend any of my noble friends to oppose it. I am fortified in my view not only by the speech of the noble and learned Lord, Lord Diplock, but especially by the speech of my noble and learned friend Lord Gardiner, whose standing in the matter of human rights is as high as that of anybody in your Lordships' House or indeed in this country. The fact that he is prepared to welcome this Order seems to me to indicate that one could almost say that that is good enough for all of us, because he, after all, did stand up for the rule of law very strikingly when the question of interrogation methods came forward, and it was his Minority Report which the Government, wisely, accepted.
I can see certain possible difficulties, and in particular it would be useful if the Government could give an indication of how speedily this procedure will operate. We know that delays occur in the ordinary courts and that people may be locked up on remand for months; we have had one recent case to this effect. As I understand it, all the present internees are automatically in the position of someone with regard to whom it is deemed that there is already an interim custody order. It would be interesting to know how soon some of these cases will come for adjudication by the Commissioner. A great deal will depend on how speedily the new procedure is worked. It will be absolutely disastrous if there are delays which give rise to a feeling that this is just the old internment under a new name. I happen to believe that it is a great thing that at last the Regulations mentioned in paragraph 12 of the Special Powers Regulations are hereby revoked. I think we should not fail to emphasise that this Order is in fact a revocation of the internment provisions of the old Special Powers Regulations.
I am sure the House will echo the tributes to Judge Brown, and indeed, to all those who are carrying out the enforcement of law in Northern Ireland. I would just leave one further point with 451 the noble Lord, Lord Windlesham. This Order is already in force, and has been for a considerable number of days. In fact I assume that interim custody orders are in force against everyone who was already in custody or in internment, and that all the cases of those in internment must already have been referred to a Commissioner, even if the Commissioner has not inquired into the case. But if in the light of this discussion and experience there are further improvements that can be made, I hope that the noble Lord will not hesitate to come to Parliament with an amending Order. I would urge particularly that the Government should give careful consideration to what would be a very small amending Order to make provision for what my noble and learned friend Lord Gardiner asked for in the matter of perhaps a Commonwealth judge, or some judge from abroad. It is this sort of act that is of such importance—of much greater importance than is sometimes apparent to those who are desperately coping with the situation, doing what they know to be right, but sometimes missing the important presentational angles.
I did not know that the Diplock Report had yet been announced, and it was unusual, if enjoyable, to have it announced by the noble and learned Lord, Lord Diplock. It would be interesting to know how quickly the Government can proceed on this, because it is of the greatest importance—and we stressed this in our debate the other day—that we should move into a position which is fully consistent with the law (I am not saying that this is inconsistent), and with the sort of provisions that are proposed in the Fabian pamphlet, to which tribute has been paid, and incorporated as a regular part of the law of the land. Any indication that the noble Lord can give with regard to that will be welcome.
§ 7.32 p.m.
§ LORD WINDLESHAM
My Lords, I am grateful to noble Lords who have spoken in this debate and for the reception that has been given to this Order. We have heard two notable speeches, if I may say so, from the noble and learned Lord, Lord Diplock, and the noble and learned Lord, Lord Gardiner. In the light of the special study that the noble 452 and learned Lord, Lord Diplock, has given to this subject in recent weeks, I suppose that he has greater wisdom in this matter than anybody else in your Lordships' House, and perhaps anyone else outside it.
As the noble and learned Lord said, he submitted his Report to my right honourable friend the Secretary of State for Northern Ireland yesterday. We are most grateful to him for the remarkable speed with which he has considered a problem of great importance, and made recommendations for changes in the administration of justice in Northern Ireland. The intention is that the Report shall be published so that this House and another place can have an opportunity to consider the proposals it contains but, as noble Lords will appreciate, it is rather too soon for me to say when publication will take place. It will be as soon as we can arrange it. I take the spirit of what the noble Lord, Lord Shackleton, has said; this is a matter of considerable public importance and political significance in Northern Ireland, and urgency certainly attaches to it.
The noble and learned Lord, Lord Gardiner, put the Order squarely in the context of human rights. He set a fairly stiff standard, and I was wondering how the Order was going to measure up to the yardstick he laid down. He said that he believed the new procedure to be a considerable improvement on the old one, and that in the main he felt that the safeguards contained in the Order were on the right lines.
The noble and learned Lord raised one point of detail in particular. That was the requirement in paragraph 2 of the Schedule to the Order, that a Commissioner should hold or have held judicial office in some part of the United Kingdom, or be a barrister, advocate, or solicitor of not less than ten years' standing. Paragraph 5 applies the same requirements in relation to the appeal tribunal. Clearly, in relation to work of this kind it is essential to employ the services of people with wide experience in a common law justicial context. This is particularly the case where, as here, evidence inadmissable in a court of law may be received.
As the noble and learned Lord said, the authors of the Fabian tract entitled, 453 Emergency Powers; A Fresh Start, which we had an opportunity to study well in advance of publication, made the suggestion, as others have done, that there might be advantage to be gained by drawing in people from overseas, perhaps from the Commonwealth, who have had judicial experience. We have been most fortunate in this respect in being able to secure the services as one of the Commissioners of a member of the Bar in the United Kingdom, but who has served as Director of Public Prosecutions, Solicitor-General and Attorney-General in the Northern Region of Nigeria, and subsequently as a judge of the Supreme Court of Nigeria. I appreciate that an appointment of this sort might not go quite as far as the noble and learned Lord is suggesting, but it helps to broaden the experience of the Commissioners. The noble and learned Lord, Lord Gardiner, also asked me how many Commissioners there were. At the moment there are three, who sit separately, but there is no fixed number laid down in the Order.
The noble Lord, Lord Kilbracken, was good enough to give me advance notice of the questions which he raised and I am therefore in a position to reply fairly fully. Before he moved on to ask this series of questions he put one preliminary question which received art answer from his own Front Bench. As the noble, Lord, Lord Shackleton, said, the 242 people who on November 7 (the date on which the Order came into effect) were already interned or detained under Regulations 11 and 12 of the Special Powers Act were referred by the Secretary of State to the Commissioners. So all are now within the procedure set out in the Order. Indeed, something of the order of 100 cases have already been heard by the Commissioners in the four weeks during which the new system has been in operation.
The noble Lord's first question referred to the fact that a person could be detained for 28 days without his case being referred to a Commissioner. It is true that any system of criminal justice must make provision for the interim custody of the accused between arrest and trial. In the case of a criminal charge, this is dealt with by successive applications for the accused to be remanded in custody while the police investigations continue. 454 Under the Order, the problem is dealt with by allowing the Secretary of State to make an interim custody order. The chief constable then has a maximum of 28 days to complete his investigations and decide whether he can prove his case before the Commissioner or not. If he then decides he has the necessary evidence he will refer the case to a Commissioner, and the date for the hearing is then in the hands of the Commissioner. If the chief constable decides that notwithstanding his suspicions he cannot produce the necessary evidence in the trial, he will not refer the case to a Commissioner, and the prisoner will be released in any event not later than 28 days from the making of the interim custody order.
I might add that the interim custody order will usually be made within 72 hours of the person's arrest, and a person cannot be detained in right of his arrest for more than a day or two. I should also say, although this is no part of the Order but an administrative safeguard, that applications for interim custody orders are by no means automatically granted by the Secretary of State. There is a thorough process of scrutiny before he, or anyone on his behalf, decides whether or not to sign one at all.
The second question related to a case being referred to a Commissioner and then possibly being delayed for a protracted period, or for an indefinite period. The noble Lord said that throughout this whole period the man may not know on what grounds he is being detained other than that he was suspected of terrorism. This is not the case. It is not true to say that the adjudication can be delayed indefinitely where a case has been referred to a Commissioner. It has to be referred to a Commissioner or not referred within the period of 28 days. Article 5(1) provides that where a case is referred to a Commissioner, a Commissioner shall inquire into it. If there were any undue delay in complying with this obligation, the High Court could then intervene by mandamus to compel compliance. It is inconceivable that any Commissioner would allow a trial to be delayed without some good reason. In practice, the work of the Commissioners is likely to be at least as expeditious as that of the criminal courts, and no such provision has ever been 455 thought necessary with the ordinary courts of law.
Perhaps I might interject a reply here to the noble Lord, Lord Shackleton, who correctly raised the question of this procedure working swiftly. There is always a period between arrest and trial where proceedings take place in the courts, and such is the volume of business and the burden on the higher courts in Northern Ireland at the moment that in Belfast the average period between arrest and trial on indictment—which covers all the more serious charges, such as explosives, firearms and so on—is five months. The new procedure should be much quicker than that. We hope that there will be no possibility of any period of that sort of time elapsing, and the fact that the Commissioners have in four weeks handled over 100 cases is an indication of the speed at which the new procedure can work.
The noble Lord's third question related, rather in the same way, to the possibility that if a man appeals the hearing might be delayed indefinitely. But the same considerations apply here as in the case of undue delay in adjudication by a Commissioner. Any unwarranted delay would be unlawful and could be stopped by the High Court. The noble Lord's fourth point concerned the question of inadmissible evidence, and I understand that the main category of inadmissible evidence is likely to be hearsay evidence. The rule against hearsay evidence was explained so cogently and fully by the noble and learned Lord, Lord Diplock, that I do not think it requires me to read out the explanation that I have here, which does little more than go over the same ground.
The noble Lord, Lord Kilbracken, asked whether there is any other form of inadmissible evidence. I understand that the hearsay rule is the most important point, and the noble Lord might like to read in Hansard the report of what the noble and learned Lord, Lord Diplock, had to say about it. But there are a number of other matters, such 456 as the reception of a copy of a document instead of only the original. The final point raised by the noble Lord, Lord Kilbracken, was that a respondent's removal might be directed by a Commissioner on the grounds of his disorderly conduct, but not by the tribunal at times when he is entitled to be present. Paragraph 12(2) of the Schedule is much more emphatic than paragraph 23. It states not that the respondent shall be entitled to be present, but that he shall be present. It is therefore necessary in paragraph 12(2) to qualify this provision to exclude the case of disorderly conduct. By the same token, it does not apply the entitlement to be present for the purpose of being disorderly.
The noble Viscount, Lord Amory. who took part in our debate on Tuesday and whose contribution I know the Secretary of State has noted with interest, put his finger on the central political aspect of the change which Parliament is being asked to approve to-day that is, that internment in the form in which it had been, known before had become the central grievance of the minority community. So it was essential, as I explained earlier in the week, to break this particular log-jam if we are to reach a position in which we can hope to obtain sufficient confidence from the minority community to reach a settlement next year. I have covered the main points which the noble Lord the Leader of the Opposition made in his closing speech. I hope I have not replied too fully, but the noble Lord, Lord Kilbracken, gave me advance notice of the points which he raised. All of us recognise that we are concerned here with highly delicate issues, such as the powers of the courts and the rules of procedure and evidence which exist to safeguard the interests of the individual and the liberty of the subject. We have to try to strike the right sort of balance. That is what this Order attempts to do, and I am grateful for the reception which it has had in your Lordships' House this evening.
§ On Question, Motion agreed to.