HL Deb 23 February 1972 vol 328 cc606-20

7.31 p.m.


My Lords, I rise to move the first of the two formal Motions of which my noble friend the Leader of the House gave some indication this afternoon. The formal Motion is that the Clerk do read Standing Orders No. 42 and No. 78. Standing Order No. 78 requires the reading aloud by the Clerk of both these two Standing Orders as a condition of the use of the emergency procedure to pass a Bill through all its stages in one day without notice.

My Lords, it might be for the convenience of the House if this Motion were treated as being purely formal and any remarks I might have to make could be confined to the second of the two procedural Motions. I therefore beg to move.

Moved, That the Clerk do read Standing Orders Nos. 42 and 78.—(The Lord Chancellor.)

On Question, Motion agreed to.

The said Standing Orders were then read by the Clerk of the Parliaments as follows: 42. No Bill shall be read twice the same day; no Committee of the whole House shall proceed on any Bill the same day as the Bill has been read the Second time: no report shall be received from any Committee of the whole House the same day such Committee goes through the Bill, when any amendments are made to such Bill and no Bill shall be read the Third time the same day that the Bill is reported from the Committee, or the order of commitment is discharged. 78. No Motion shall be granted for making any new Standing Order, or for dispensing with a Standing Order of the House, unless notice shall have been given in the Order Paper to consider the said Motion: Provided that on an occasion of grave national emergency the House may, notwithstanding the provisions of Standing Order No. 33B resolve without notice that it is essential for reasons of national security that a Bill (or Bills) should immediately be proceeded with and that the provisions of Standing Order No. 42 should he dispensed with to enable the House to proceed that day with every stage of a Bill (or Bills) which it thinks necessary; and if the Clerk shall have read Standing Orders Nos. 42 and 78 at the Table and the motion for the said resolution shall have been agreed to, any such Bill may be passed through all its stages on that day.


My Lords, I now come to the second Motion of a procedural character which I have to move—namely,

To resolve that it is essential, for reasons of national security, that in the event of the Northern Ireland Bill being received from the Commons this day it should be immediately proceeded with and the provisions of Standing Order No. 42 be dispensed with to enable the House to proceed this day with every stage of the said Bill.

My Lords, I noted with gratitude that when the two Statements were made this afternoon the noble Lord who leads the Opposition was good enough to say that he did not think it would be a difficult matter for the Government to persuade the House that conditions of emergency existed to justify the unusual procedure which I am now proposing, and, strictly speaking, I suppose that would enable me to move this Motion rather shortly. But, as my noble friend the Leader of the House explained when he made his Statement on Business this afternoon, we do not know exactly when another place, if it thinks fit to pass the Government measure which is before it, will be ready to send it up to this House. Moreover, I do myself consider both that the strict requirements of the Motion require me to explain why the emergency is so sharp and why the circumstances are such as to require the unusual procedure, and also that it would be more convenient that I should explain at a time when your Lordships are present in substantial numbers the broad principles upon which the Government have thought fit to act.

My Lords I explained in brief earlier this afternoon what I am now going to say at somewhat greater length, but I should like to spell it out a little more fully than perhaps I was able to do in answer to questions arising out of the Home Secretary's Statement which I was then repeating. It is sometimes said that in this country we have no Written Constitution in the ordinary sense of the words "Written Constitution"; but to this general truism there is one complete exception, and that is that the Six Counties of Northern Ireland which form part of the United Kingdom have a Written Constitution in the strictest sense of the word. That Written Constitution is contained in the Government of Ireland Act 1920, an enactment which was originally intended to apply to both parts of Ireland but which, in the events that subsequently happened, remained alive only for the purpose of the Six Counties in Northern Ireland.

The Government of Ireland Act gives fairly plenary authority to the Stormont Parliament to legislate for the peace and good order of the remaining part of the Province of Ulster. But there is an exception in respect of a matter relating to the Armed Forces of the Crown. The Government of Ireland Act 1920 provides by Section 4 for the legislative powers of the Northern Ireland Parliament. Section 4(1) reads in these terms: Subject to the provisions of this Act, … the Parliament of Northern Ireland shall … have power to make laws for the peace, order and good government of … Northern Ireland with the following limitations, namely, that they shall not have power to make laws except in respect of matters exclusively relating to the portion of Ireland within their jurisdiction, or some part thereof, and (without prejudice to that general limitation) that they shall not have power to make laws in respect of the following matters in particular.… There then follows a series of enumerated matters in respect of which the Legislature of Northern Ireland thereby set up is not to have power.

No. (3) is as follows: The navy, the army, the air force, the territorial army or any other naval, military or air force, or the defence of the realm or any other naval, military or air force matter (including any pensions and allowances payable to persons who have been members of or in respect of services in any such force or their widows or dependants, and provision for the training, education, employment and assistance for the reinstatement in civil life of persons who have ceased to be members of any such force)". It had always been assumed that that prohibition was limited to matters relating to the Armed Forces, in the sense that the Armed Forces were under the orders of the United Kingdom Parliament; and this had been assumed for a very long time before the present emergency in Northern Ireland. What happened in substance was that the Northern Ireland Parliament provided, by its Special Powers Act 1922, that the Minister for Home Affairs in the Six Counties should have powers to make Regulations, and many of the powers—though not all of them—now exercised by Her Majesty's forces in Northern Ireland in relation to the Emergency have been made under such Regulations. The Regulations were not called into being for the purposes of this emergency; they were in existence from the start, and the relevant alterations to them, which were introduced at a later stage than the original Regulations and which purported to give power to Her Majesty's forces on duty, were introduced, some of them as early as 1954, some of them as early as 1957, and all except one, I think, before the commencement of the present Emergency.

To show how important they are, they ace Regulations at least including Regulations 4, 5, 6, 11 and 38. The same point arises in all of them, and therefore I shall only read a short version of most of them. I shall start by reading the words of Regulation 4: Any police officer or constable or member of any of Her Majesty's forces on duty may, if he suspects that any house, building, land, vehicle, vessel, aircraft, or other premises or anything therein are being or have been or are about to be constructed, used or kept for any purpose or in any way prejudicial to the preservation of the peace or maintenance of order, or that a crime or offence against these Regulations is being or has been committed thereon or therein, enter, if need be by force, the house, building, land, vehicle, vessel, aircraft or premises at any time of the day or night and examine, search and inspect the same or any part thereof and may seize anything found thereon or therein or any such vehicle, vessel or aircraft which he suspects is being used or is intended to be used for any such purpose as aforesaid or is being kept or used in contravention of these Regulations. The words at the beginning of this Regulation included, in the form in which I have read them out, not merely any police officer or constable but also "or member of any of Her Majesty's forces on duty"; and those words were in this case added by an amendment to the Regulation as long ago as 1957. So they have been in force for a very long time.

No. (5) allows similarly any police officer or constable or member of any of Her Majesty's forces on duty to stop any vehicle travelling along any public road, and if he suspects that any vehicle upon any public road is being used for any purpose or in any way prejudicial to the preservation of the peace he may search and seize the vehicle and seize anything found therein which he suspects is being used or intended to be used for any such purpose or in any such way as aforesaid. No. (6) deals with the finding of ammunition and provides that if any member of the Armed Forces or a police officer or constable suspects that any person is carrying any firearms or ammunition, and so on, he may stop the person and search him; and it shall be the duty of any person, by Regulation No. 7, if so required by a police officer or constable or member of Her Majesty's forces on duty, to stop and answer to the best of his ability and knowledge questions which may reasonably be addressed to him. There is a power under Regulation 11 to arrest in similar circumstances. Under Regulation 38 there is a power, where it is suspected that any assembly of three or more persons may lead to a breach of the peace or serious public disorder, for the persons constituting the assembly to be ordered to disperse. The only difference there is that the order must be given by a commissioned officer of Her Majesty's forces on duty and not by any member of Her Majesty's forces on duty.

Those, my Lords, are the Regulations which are absolutely essential for the troops to carry on the business they are carrying on under the Emergency at the present time. This is not simply the opinion of Her Majesty's present advisers; it is the view which was formed very emphatically by the previous Administration, and as we say perfectly rightly. In a Written Answer to a Question in the last Parliament the then Under-Secretary of State for Defence said this on November 28, 1969; that is, virtually at the beginning of the Emergency: The powers conferred upon members of the armed forces on duty by regulations made under the Civil Authorities (Special Powers) Acts include those of stopping and searching persons and vehicles, entering and searching premises, requiring persons to answer questions, and arresting persons without warrant. The regular exercise of these powers has been essential for the conduct of peacekeeping operations by the armed forces."—[OFFICIAL REPORT, Commons, 28/11/69, col. 158.] And a few days earlier Mrs. Shirley Williams, then Minister of State at the Home Office, said this in the House of Commons: Any Government who swept aside the Special Powers Act, would have to bring in other legislation beforehand, or the Northern Ireland Government, and, for that matter, the British Amy would find that they did not have the kind of legislation which is essential at present. That appears at col. 337. Then at col. 340 she said: In the present situation the control over extremists of both sides by the British Army is operating at present under these Acts, and they simply cannot be swept away and not replaced at all.' She said the same thing even more emphatically later. On December 1 the Minister of Defence for Administration, Mr. Roy Hattersley, said this (cols. 1211–12): This is exactly the sort of task the army is at present carrying out. It is exactly the sort of task which the new Regiment should carry out … and we must rely on those parts of the Special Powers Act which make it possible for us to go on doing the job which is vitally necesary in the interests of the community as a whole. Nobody, I think, for the moment supposed that the prohibition in the Government of Ireland Act in respect of military matters had any bearing at all upon the powers which I have enumerated, or on any subsequent or other powers. This was confirmed last year in September when, as some Members of your Lordships' House will remember, Mr. Justice Ackner, on an application for a writ of habeas corpus, held that the Regulation then in question was not ultra vires and that such Regulation could be exercised by Her Majesty's forces and could be applied to the Army. That was the view not only of the Government but of a High Court Judge in England, and I think of both Administrations in this country, and in Stormont.

This morning a case came before the Divisional Court in Northern Ireland, presided over by the Lord Chief Justice of Northern Ireland and two Puisne Judges beside him, and they came to a contrary conclusion. I have seen only a Telex version of their judgment, but I have read it and it quite clearly establishes that, if that judgment be held to be correct, the Regulation which was then in question—Regulation 38, the last of those which I read out, which had formed part of the Code only since 1970—was invalid on the ground that it fell foul of the prohibition that I have read from the Government of Ireland Act. Quite clearly, from the terms of the judgment this would invalidate not merely Regulation 38 (under which the Notice of Motion was launched to quash the convictions for failure to disperse), but any act done by Her Majesty's Forces under any of the Regulations to which I have drawn the attention of the House. It would mean, therefore, that the whole of the operations of the Army would be at risk, except of course in so far as the Army would still possess the ordinary powers which Forces of the Crown possess in any part of the United Kingdom under Common Law: that is to say, the duty to go to the aid of the Civil Power, the rights of self-defence and the duties under military law to obey the commands of their officers. It would leave them virtually stripped of their powers.

Obviously, the Crown could appeal against the decision of the Northern Ireland High Court, but for the reasons that I gave earlier this afternoon, this is not a practical proposition. Leave to appeal was obtained, but it would be some time at least before the appeal could come on, and in the meantime the whole of the Northern Ireland security situation would be at risk. The Government therefore decided to legislate, and I think I have established by now that a situation exists justifying the special use of this unusual and unattractive procedure to which we have drawn the attention of the House by reading the Standing Orders. I feel quite sure that it is the only thing we could do and when I gave notice of this this afternoon I was much encouraged by the reception which I received both from the Liberal and from the main Opposition Benches.

My Lords, there are two points that I should like to emphasise arising out of what I have said—perhaps three. The first is that if the Bill is passed by this procedure the convictions which have been quashed this morning will of course remain quashed, because it is the intention of Her Majesty's Government to abandon any thought of appeal. They will have established by Parliamentary action what we maintain was always the intention of the Act. Therefore those who have gained their judgment this morning will be entitled to rest upon their judgment in respect of the convictions which would otherwise have been sustained.

The second point is that what will be proposed in the form of a Bill will not validate anything except what was rendered invalid by the judgment this morning. It does not draw a veil of protection over any acts of the Crown Forces which are admittedly illegal, any excess of power, any act in excess of the powers conveyed on them either by Common Law or by the Regulations. It does not justify anything which cannot be justified, or was not believed to be justified as of yesterday afternoon.

The third point is that the noble Earl, Lord Longford—athough I do not see him at present in the House—asked me to give an assurance, which I happily do give, that the Bill will not give the Northern Irish authorities any power to give orders to Her Majesty's Forces. They will remain under their existing command, and it is not intended in any way to extend the amplitude of powers by means of this Bill. It is simply intended to declare valid something which was declared by the High Court of Northern Ireland this morning to be ultra vires the Government of Ireland Act.

I have introduced this Resolution rather more fully than I was able to do this afternoon. I hope that I have succeeded in making it intelligible, and I equally hope that I have not wearied the House by what is necessarily a rather technical exposition. I shall, of course, be happy to deal with any points that I can deal with if they are raised in debate. I beg to move.

Moved, to resolve, That it is essential, for reasons of national security, that in the event of the Northern Ireland Bill being received from the Commons this day it should be immediately proceeded with and the provisions of Standing Order No. 42 be dispensed with to enable the House to proceed this day with every stage of the said Bill.—(The Lord Chancellor.)

7.56 p.m.


My Lords, the difficulty of the situation in which we find ourselves this evening has been well illustrated by the speech of the noble and learned Lord the Lord Chancellor. I personally am very grateful to him for giving such a full explanation, amounting almost to a Second Reading speech. I make no complaint of that, because if we are to accept the suspending of our Standing Orders in this way it is certainly incumbent on the Government to justify their reasons for so doing. None the less, this presents us with difficulties.

I do not propose at this stage to debate the Bill. Although it is always very dangerous to interpret the view of the House on the basis of one or two remarks, I think this was the view of the House this afternoon. It is almost certain, however, that we shall need to debate the Bill when it finally comes to us. We are doing something which was well summed up by the noble and learned Lord when he referred to this as an unattractive procedure. It is an unattractive procedure to abandon the safeguards which we have to ensure that legislation receives proper consideration.

On the face of it—and I shall avoid debating the merits of the Bill itself—it seems to be a very simple matter. I would emphasise straightaway that I have no doubt that if the Bill comes to us your Lordships should pass it; none the less some questions do arise. One question is set out in an Amendment which may be moved in Manuscript form by my noble friend Lord Brockway. I think that we, as a House, ought not in a matter of this importance, just because of convenience of time, to shrink from giving proper examination to legislation of this kind. May I ask the noble and learned Lord whether it would be possible for his very clear exposition to be reproduced, so that those of us who were following what he will agree was a very carefully argued line of argument, have an opportunity to study what he said before the matter comes to us later tonight? I do not know what time the Leader of the House expects it to arrive, but it may, for instance, have some effect on what my noble friend Lord Brockway wishes to say. It is not easy for noble Lords always to be here. My noble friend Lord Longford has had to go away, so perhaps I may suggest this Course.

Further, if we are going to adopt this sort of procedure in future, there ought to be some sort of way, some sort of practice, for looking at what we have done. Here we are sweeping away one of the most important Parliamentary safeguards, taking all stages of a Bill—which again I repeat I think is justifiable—without much opportunity for consideration. I know that other noble Lords—including some with a legal background—have expressed concern; and I think it may well be that if we have to adopt this course there ought to be some automatic drill whereby perhaps the Procedure Committee considers the proceedings. When we recall the very weighty words which the Clerk of the House read to us, we ought not to underestimate the seriousness of what we are doing. I shall not speak to the merits of the Bill, and I may not need to do so later tonight. But I should again like to ask the noble and learned Lord the Lord Chancellor whether he can make available to us in written form the arguments that he set forth.

8.0 p.m.


My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for giving us his explanation of the background to this Motion, which I think should be approved. But that does not necessarily imply that the Bill will be approved, although I think there is agreement among all noble Lords that an issue has arisen and that the Army should be protected. Earlier this afternoon, there was some suggestion that the debate on this Motion might serve as a kind of preview to the debate on the Bill, but I feel sure that it would be more useful to limit this discussion to the actual Motion before us. Therefore, while I appreciate the information given to us by the noble and learned Lord, I feel that the proposed Bill cannot usefully be discussed at this stage. At the time when the Statement was made earlier this afternoon we had not had an opportunity of looking at the draft Bill. We have now had an opportunity, and I think the Bill raises some legal complications which may not have been foreseen when the Statement was made. Therefore may I suggest that we accept this Motion without prejudice to what may be said on the Bill itself? Putting it in that way, I hope that the Motion will be accepted.


My Lords, there was a suggestion that we should debate the Bill on this procedural Motion, but I think that would be a mistake. Any remarks that I have to make will certainly be reserved until we come to the Bill itself, and I think it would be wrong for the House to be discussing in this Motion the merits and principles of the Bill.


My Lords, I should like to thank noble Lords who have expressed themselves so shortly on this Motion. I was very much flattered by the suggestion that I should make available to the House the remarks which I uttered in moving the Motion. Unless Hansard can do so, I am afraid that that is not possible, for the reason that, as some noble Lords may have observed, although I read from a number of documents, such as the Government of Ireland Act, the actual structure of my speech was not from a manuscript of any kind. Perhaps the House will acquit me of any discourtesy in saying that. I have been working very much under pressure this afternoon, and I thought it far better to get an up-to-date account. It was only a very few minutes before I entered the Chamber that I actually saw the judgment of the Northern Ireland Court—so that, although I was able to hazard a fairly sound guess as to what it contained, I could not give a text to noble Lords.

I happen to have with me, if it is of any help to the Opposition Benches, a note of what the Attorney General intended to say in the other place, which would give noble Lords a perfectly accurate statement of the arguments in quite different language. But that is the utmost I can do, unless the Hansard reporters can get out a typescript, and unless it can be reproduced in some photographic form, in which case I should give all the help I could to noble Lords who wanted to study it.


My Lords, is it possible in the time available to have a copy of the judgment put at our disposal?


There again, my Lords, all I have is a Telex report of the judgment which came into my hands a few minutes ago, and I doubt whether it is in a form which can be photographed. It is rather faint and is already a photograph of something, although I can read it. I do not know whether there is any staff available to type it, but if any noble Lord would care to come to my office and read it in, I am afraid, the all-too-long period before we shall actually be debating the Bill, I should, subject to the usual safeguards, be only too glad to help in every way possible. But—


My Lords, may I interrupt the noble and learned Lord. I am sure he is trying to be very helpful to us, but this is a serious matter and I really feel that the resources of the Government, the Constitution and one or two other things might be put at the disposal of the House. I do not want to put all the responsibility on the noble and learned Lord, but there are other resources. I think the noble Earl the Leader of the House could perhaps help to put facilities at our disposal.


My Lords, I am sure my noble friend has heard what the noble Lord has said. But I must tell the noble Lord firmly that his request must be addressed to the Leader of the House. In what I have already said, I have exhausted my own capacity to assist. But those offers remain open, quite irrespective of what others may be able to do. I think that that part of the discussion ought to be pursued through the usual channels. But, at any rate, I am very grateful to noble Lords for having been so indulgent to me, and I trust that the Motion may now pass if I put it to the House in the ordinary way.

On Question, Motion agreed to.

7.57 p.m.


My Lords, I should like to say straight away, in response to what the noble Lord the Leader of the Opposition said, that if I had had any warning that there was to be a request—and it is very natural that it should have been made—for a copy of the judgment to be made available, I should have seen what could be done by way of intelligent anticipation. I cannot, speaking off-the-cuff, guarantee what can be done, but I shall certainly make it my business as soon as we conclude our present discussion to see in what way the wishes of the House can be met in this respect. I am told that there are already a great number of copies of the judgment available in the Printed Paper Office and in the Library, and that is the Stop Press news on the subject.

So far as the question of how we might continue our discussion is concerned, I find myself in some difficulty, and I wish to apologise to the House because it has been very difficult to predict in any way the timing of the passage of this Bill through all its stages in another place. In fact, I understand that, up to now, it has been proceeding a good deal more rapidly than had been anticipated in some quarters, which places us in some difficulty. It certainly would not be my wish to suggest that your Lordships should come back prematurely and then find that the Bill had not completed its passage through another place. On the other hand, in view of the fact that this matter is both urgent and in the nature of an emergency, I think it would look wrong if there were too great a hiatus in the timing of the passage of the Bill through the two Houses. It is my understanding that the business in another place—it is no more than a guess—may be completed in something like an hour's time. In view of that, I suggest to noble Lords that we should adjourn during pleasure, in expectation that we may wish to resume our discussion of this matter in about an hour's time. All I would say, by way of consolation, is that I am told, through the good offices of our Refreshment Department, who have, as always, risen to the occasion, that there are what are delightfully called "heavy snacks" now available in the Refreshment Department. I apologise for springing this on noble Lords opposite, but this is a rather unusual situation, and that is what I suggest to your Lordships in this unusual situation.

8.10 p.m.


My Lords, I can see that the noble Earl is trying to be helpful and is in some difficulty, but I think it was not unreasonable for the noble Lord the Leader of the Liberal Opposition and others to make their request and for the Government to be aware that the material was available. The Home Office is a vast organisation; I am sure they could provide anything. If it is of any help, I am sure the Opposition Whips' office would type copies. This is a fairly serious matter, and I hope these copies will be made available. Furthermore, an impression has got around—I do not know whether I and others were responsible—that the House would not be meeting until rather later. I understand the difficulty. My experience is that a Bill takes a long time to get from another place to this House. We have had difficulties before; and I hope that perhaps they will send the Bill up smartly. I am wondering whether it would not be better to suggest an actual time, such as 9.30 or 10. I think it would not be unreasonable if we adjourned during pleasure until 10 o'clock. I do not know what the sense of the House is on this point: I am not sure whether Members are attracted by "heavy snacks" or not. It is not that we want to delay anything that is of great importance, but I think the convenience of the House might justify our saying a time like 10 o'clock. If the noble Earl would look behind him he would see a large number of nods in support of this view. Why does he not suggest that we should leave it until 10 o'clock?


My Lords, if it would be helpful that I should intervene now, I should very willingly fall in with that suggestion. The difficulty about naming a time is that we may very well guess wrongly, but I should prefer to err on the early side because I think it is important that there should not be too much of a gap between the proceedings in both Houses. I should like to suggest 9.30.


My Lords, may I just supplement the generous offer of my Front Bench of secretarial assistance to the Leader of the House and to the noble and learned Lord? If they desire the services of my secretary, they are available.

8.13 p.m.


My Lords, I am most obliged to the noble Lord, but we had anticipated his kind offer and, as I mentioned just now, there are copies of the judgment available both in the Printed Paper Office and in the Library. My Lords, I beg to move that this House do now adjourn during pleasure until 9.30 p.m.

Moved, That the House do now adjourn during pleasure until 9.30 p.m.—(Earl Jellicoe.)

On Question, Motion agreed to, and House adjourned during pleasure accordingly.

9.35 p.m.

House resumed.


My Lords, I am afraid that we are still, as it were, legislatively in a state of suspended animation. In my view it would be inadvisable for us to take too many bites of this particular apple. I should therefore like to suggest, having tried to take as much stock as I can of the very uncertain position at the present time, that it might be sensible for us to adjourn for, say, two hours, until 11.30 p.m. If that is agreeable to your Lordships, I beg to move that this House do adjourn until 11.30 p.m.

Moved, That the House do now adjourn during pleasure until 11.30 p.m.—(Earl Jellicoe.)


My Lords, I would suggest that we accept the advice given by the noble Earl the Leader of the House. This is not the first occasion when a Leader of the House has found himself dependent upon events in another place. I think that we should take the noble Earl's advice and hope that his present guess is a little better than the previous one.

On Question, Motion agreed to, and House adjourned during pleasure accordingly.