§ 11.31 p.m.
§ Brought from the Commons.
§ Moved, That the Bill be now read 1a.—(Lord Denham.)
§ On Question, Bill read 1a.
§ Then, Standing Order No. 42 having been dispensed with (pursuant to Resolution):
THE LORD CHANCELLOR
My Lords, pursuant to the procedural Resolutions which we passed this afternoon, I beg to move that this Bill be now read a second time. I explained at some considerable length, in connection with the second of the two procedural Resolutions, the reasons which had led the Government to take this course; and I outlined, at any rate in general terms, the nature of the legislation which, in pursuance of that course, it was determined to introduce.
My Lords, I know that the text of the Bill is in the hands of certainly the Front Bench of the Opposition, but as it is a very short Bill, and as exposition is sometimes more misleading than recitation, I think the best course that I can pursue is to begin by following the terms of the Bill fairly closely. The first thing to notice about it is the Long Title. The Long Title establishes that it is a Bill declaratory of what we believe to have been the law. The Long Title is:A Bill to declare the law as to the legislative powers of the Parliament of Northern Ireland under section 4(1) of the Government of Ireland Act 1920, so far as relates to Her Majesty's forces and in particular to the conferment of powers, authorities, privileges or immunities on them.My Lords, that establishes the main point which I was seeking to explain this afternoon; namely, that all that is desired to be done by this piece of emergency legislation is to establish the law as it was universally believed to be, and as it had been held by a Judge in the High Court in London to have been from the start, from 1920 onwards, and as it was supposed to have been, as I say, universally, until the decision of the High Court in Northern Ireland this morning. It 622 seeks to validate nothing except what was universally believed to be that, and it seeks to achieve nothing outside the ambit of that very limited and technical purpose.
The text of the first clause of the Bill—and the first clause is the only operative clause; and I read it out because again noble Lords have had it only for a short time, if they have had it at all—is as follows:The limitations imposed by paragraph (3) of section 4(1) of the Government of Ireland Act 1920 on the powers of the Parliament of Northern Ireland to make laws shall not have effect, and shall he deemed never to have had effect, to preclude the inclusion in laws made by that Parliament for the peace, order or good government of Northern Ireland of all provisions relating to members of Her Majesty's forces as such or to things done by them when on duty, and in particular shall not preclude, and shall be deemed never to have precluded, the conferment on them by, under or in pursuance of any such law or powers, authorities, privileges or immunities in relation to the preservation of the peace or maintenance of order in Northern Ireland.Clause 2 is the Short Title and can be ignored. As I sought to emphasise in what I had to say this afternoon, the situation arises from a limitation, or an interpretation, placed upon the meaning of the Government of Ireland Act 1920 in the courts by the judgment this morning of the High Court of Northern Ireland.
The Government of Ireland Act 1920 conferred on the Parliament of Northern Ireland powerto make laws for the peace, order and good government of Northern Ireland.In passing, may I say that this phrase, "to make laws for the peace, order and good government of Northern Ireland" is a technical phrase hallowed by countless precedents to confer legislative powers in their full amplitude to all Legislatures to which these powers are given. There is no power not included, so far as I know, in that general phrase. But upon the general phrase the Government of Ireland Act 1920 imposed a particular exception which I read this afternoon, and the particular exception which is relevant to this piece of legislation is:that they shall not have power to make laws in respect of the following matters in particular namely … 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 …".623 I need not read the rest of the section. The exception related to the phrase, "any other naval, military or air force matter" and to the preceding phrase. Under the Special Powers Act 1922, of which I gave a general account this afternoon, the civil authority, which for these purposes includes the Minister for Home Affairs of Northern Ireland, is given general authority to make Regulations for the provision of the preservation of peace and the maintenance of order; and the Regulations under which the Army has been operating from time to time since the Emergency began in 1969 have been Regulations issued by the civil authority in Northern Ireland under the Special Powers Act, by virtue of Section 1(3), the enabling section to which I have referred.
Now it had been generally assumed that these powers enabled the Regulations to he made, conferring on members of Her Majesty's Forces, and in particular of the Army and members of Her Majesty's Forces when on duty, powers analogous to those already possessed by the civilian police. That was the assumption which was made. I gave a number of citations this afternoon, showing that it was an assumption made not only by the present Government and, as I have said, by a judgment of the High Court here, but by the previous Administration. In fact the Forces could not carry on their present security duties without these powers, since they include powers of interrogation, arrest, search and so forth. I enumerated them in detail this afternoon.
What was held in the High Court of Northern Ireland this morning was that these powers were ultra vires the Minister—or indeed the Parliament of Northern Ireland—to confer on members of Her Majesty's Forces, because they come within the prohibition imposed by the section of the Government of Ireland Act which I have read, Section 4(3), as being in respect of naval, military or air force matters. That is a matter which was obviously highly contentious—it could hardly be otherwise since a High Court judge in London decided one thing and two successive Administrations thought the same, and the High Court of Northern Ireland thought differently. What is clear is that unless that situation be reversed, 624 the powers under which our Forces in Northern Ireland are operating would be rendered nugatory and the whole peace and security of Northern Ireland would be put at risk.
As I explained earlier today, it would have been open to Her Majesty's Government to test the Northern Ireland judgment by appeal to the House of Lords. Indeed, counsel for the Crown sought and obtained leave of appeal, after hearing the result of the judgment. This is not a practical possibility: we could not leave these powers unused for as long as would be necessary to hear the appeal. We are certain that the Parliament of Westminster, when it enacted the Act of 1920, had the intention which we have embodied in this Bill; and we think therefore that the only possible course open to us is to validate the powers in the way in which we have done.
May I say again—although to this extent I am certainly repeating myself—three things which illustrate the extremely narrow as well as the extremely technical nature of the legislation we are now passing? We are not validating anything which was not invalidated this morning. If any acts were done illegally outside the powers conferred upon them by the Minister, they are still illegal and they would still give rise to an action in the courts: they would still give rise to an action for civil damages, where civil damages are proper, and they would still give rise to criminal proceedings if a criminal offence is committed. Nothing of that kind is validated. Secondly, the particular convictions which were quashed by the High Court will remain quashed if this legislation is passed. This is because, although leave to appeal was obtained, we shall abandon our appeal if this Bill is given legislative force. Therefore those who gained the advantage of the judgment this morning will be allowed to keep it for all time without interference.
I am glad to see the noble Earl, Lord Longford, in his place because I can now repeat to him what I said earlier this afternoon, and what he asked me to say explicitly. The Stormont Parliament does not by this Act gain any powers to give orders to our Forces. They remain under our command and under the command and responsibility of my noble 625 friend in this House. There is no power given to anybody else to assume command of Her Majesty's Forces.
§ THE EARL OF LONGFORD
I am always glad to elevate the noble Lord to still further than his high position already demands. Since the noble and learned Lord has given that answer, may I ask whether he could just spell it out because this is of great importance? On the face of it this clause seems to remove any limits on the power of Stormont in relation to the Army. I am sure his intention is the one he has stated, but can he explain how this particular clause achieves his purpose?
THE LORD CHANCELLOR
My Lords, all we have said in this clause is that the prohibition in Section 4(1)(3) of the Government of Ireland Act 1920 does not preclude the conferment of powers on Her Majesty's Forces for the sake of the good order and government. It does not entitle the Government of Northern Ireland to give orders to Her Majesty's Forces; it is for us to give orders to Her Majesty's Forces. There is no doubt whatever under the Government of Ireland Act regarding the giving of orders to Her Majesty's Forces to defend the Border or to do anything else. Matters of internal discipline remain entirely the prerogative of Her Majesty's Government. All that is said is that it does not preclude the kind of power which has been hitherto conferred by the Minister for Home Affairs which it is within his power to confer, so I would have thought, and without question, on any other member of the public, including the noble Earl or myself.
§ THE EARL OF LONGFORD
My Lords, may I ask one further question at this stage. and then remain relatively quiescent? Would it be in the power of Her Majesty's Government under this new provision to delegate their authority to give these instructions to Her Majesty's Forces? Would it be within the power of the Government to delegate that power to the Stormont Government?
THE LORD CHANCELLOR
This provision has nothing whatever to do with that. It only provides—and it is for this reason that I read out the actual terms of the proposed clause—that the Northern Ireland Government shall not be held to be acting ultra vires simply by virtue of the fact that it confers on members of Her Majesty's Forces powers which it can confer on anybody else. It does not add anything to what they have already assumed, and it does not give Her Majesty's Government any power which Her Majesty's Government do not now possess, either in common law or by virtue of Statute over Her Majesty's Forces. The noble Earl will remember that it is not only a matter of law but a matter of policy that we should retain the control of Her Majesty's Forces under our own hand for these purposes. I do not think that there could be any fear that this Bill would give any additional power in that regard.
The noble Earl flattered me by referring to past glories which I am now for ever debarred from re-assuming; but in spite of his good wishes in the matter, there was a third point that I wanted to make clear to the noble Lord, Lord Brockway. It is our intention to validate ab initio the things which have been done within the scope of the powers purported to be conferred. Except for the case here I think three applicants to the High Court this morning obtained their rights in die form of a crystallised judgment, it does not intend to take away from anybody what he would otherwise have had in the way of a right to damages, except to the extent that the Forces are indemnified if and in so far as they have acted within the scope of the powers which are validated by this Act. It does not remove any other right from them, and it does not confer any other, right upon them.
My Lords, I think I have explained sufficiently the purpose of this legislation. Earlier this afternoon I explained its urgency, and I think I should be detaining the House and wearying it unduly if I were to do more at this stage (although of course if I am asked to I shall reply to the debate) than to move that the Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)627
§ 11.51 p.m.
§ LORD SHEPHERD
The House will be grateful to the noble and learned Lord who sits on the Woolsack, and I am sure he will be one of the first to recognise that your Lordships' House is in a very difficult position this evening. I think it was about 4 o'clock this afternoon that the noble and learned Lord made an important and grave statement as a consequence of a judgment made in the High Court in Northern Ireland. At about 8 o'clock we had an opportunity of hearing a full explanation of what the Government have in mind—and I am most grateful to those who were involved in making a copy of the noble and learned Lord's speech available to some of us so that we could consider carefully what he had said. But I think the House must recognise that it is only a matter of hours, perhaps three at the most, since a copy of the Bill was in the hands of any Member of your Lordships' House. That is the first difficulty: that we are being asked to approve a Bill of very major significant importance, but a Bill that has been in the hands of Members of this House for only some three hours.
Having said that, my Lords, and recognising the very grave position in Northern Ireland—and I feel that one must accept what would be the legal consequences and the military and security prospects in Northern Ireland if your Lordships' House were not to pass this Bill this evening—I believe that your Lordships' House should pass this Bill. But I hope that the noble Earl, the Leader of the House will give us an undertaking that if we do pass this Bill this evening, and if in the course of our consultations with some of our colleagues in another place (and the mere fact that the Bill was going through another place prevented us from having these discussions which are normal, as the noble Earl will know), and as a consequence of further discussions, we find that there are matters that we wish to raise, I hope the noble Earl will give an assurance that time will be provided for these matters in the Bill to be examined. And if there is a feeling that some Amendment is necessary, I hope that the noble Earl will consider ways and means of meeting the House in this matter.
628 My advice to my friends on this side of the House is that this Bill should be given a Second Reading and should be passed into law as soon as possible. There is an Amendment, I believe, from one of my noble friends. I hope that the House will listen to the case made. I can imagine that there will be difficulty about the Government's accepting it, merely again because of the urgency of getting the Bill through. But, my Lords, if the House feels that there is merit in the case that is made by my noble friend yet is unable to accept it today, I hope that the Government will not close their mind to it and will consider meeting this matter either through further legislation or by some form of regulation or administrative decision. I do not ask the noble Lord to give a specific undertaking but I hope that he will keep his mind open, recognising the difficulties of your Lordships' House in passing this Bill this evening.
My Lords, there are other matters of constitutional importance which we ought to discuss on another occasion, as to whether there are not other ways and means of assessing the wisdom of passing such legislation at such time. But that is for another occasion. At this moment I would prefer to leave my own advice to my noble friends that we should pass this Bill this evening.
§ 11.55 p.m.
§ LORD FOOT
My Lords, may I start by saying that there has not of course been much opportunity for any of us to consult with our noble friends as to what attitude we ought to take to this Bill. and I am at the disadvantage that we have not had the opportunity of full consultation. But it is my hope that the few words that I shall address to your Lordships will have the assent and the support of my noble friends, and I think that that is likely to be the case. May I follow the noble Lord, Lord Shepherd, in saying this. We recognise that something must be done in the face of the decision of the Divisional Court in Ireland this morning. Our reservations—or, at least, my reservations—are as to whether what is being done in this Bill is the right way to go about it. I am bound to say that I have very serious reservations about the way in which this Bill has been framed.
629 I should like to follow the footsteps of the noble and learned Lord on the Woolsack in dealing with this Bill because I should like to read its terms and also read the terms of Section 4(1)3 of the 1920 Act, possibly with rather different emphasis from that which was given to it by the noble and learned Lord. If I may start with Clause 1 of the Bill, what worries me about this is the very broad and uncertain language in which it is framed. If I may read the relevant parts, the important parts, giving to them the emphasis I want to give, the clause reads like this—and I will omit words which are not material to my present point:The limitations imposed by paragraph (3) of section 4(1) of the Government of Ireland Act 1920 on the powers of the Parliament of Northern Ireland to make laws shall not have effect…to preclude the inclusion in laws made by that Parliament…of all provision relating to members of Her Majesty's forces as such and to things done by them"—
§ LORD FOOT
I beg your Lordships' pardon—or to things done by them when on duty".The words I want to emphasise are "of all provision". What does that phrase mean? Surely it can only mean provision of any kind. What it appears to be saying is that the law as it stands at the moment as declared by this Bill is that Stormont has power to make laws with provisions of any kind relating to members of Her Majesty's Forces as such or to things done by them when on duty—absolutely unlimited: anything that they like to think up. And the point is reinforced if we read on, because the Bill goes on to say this:and in particular shall not preclude … the conferment on them"—that is, upon Her Majesty's Forces—of any such law of powers, authorities, privileges or immunities in relation to the preservation of the peace or maintenance of order in Northern Ireland.According to this Bill, being the declaration of the present state of the law, the Stormont Parliament has the power at the moment—and has had conferred upon it the power—to give to the Armed Forces any power or any authority that 630 it thinks fit without limitation and without qualification. That is what it says, and that is the only thing that it can mean.
My Lords, contrast the breadth of the uncertainty and the ambiguity of that with the terms of Section 4(1) of the 1920 Act. What that Section says is this: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"—and I leave out the unnecessary words—they shall not have power to make laws in respect of the following matters in particular, namely"—and then in paragraph (3) it says:The navy, the army, the air force, the territorial force, or any other naval, military, or air force"—and so on.
My Lords, is there not a stark contrast between that and what this Bill says is the state of the law? To the layman, surely—and I am talking, I hope, about the intelligent layman—the meaning of Section 4(1)(3) is this, is it not? It is saying to Stormont: "You can make what laws you like about peace and order and good government as long as you do not seek to make any laws affecting the Armed Forces". That is what it means, and then when you come, as it were, to the layman's translation of the Bill it says what appears to be the exact opposite. It says that there is nothing in that section of the Act which prevents Stormont from including in laws relating to peace, order and good government provisions affecting the Armed Forces. It appears on the face of it to say the exact reverse of what is said in the original Act.
My Lords, I do not draw attention to these things in order to create difficulties, but to suggest that this Bill, carried through with the speed and drafted with the speed with which it has had to be drafted, is far from being adequate and is far too wide in the powers which it supposedly declares to have been conferred upon the Government at Stormont. The noble and learned Lord said, of course—and this has been the Government's case throughout—that in fact it is purely declaratory and that it is not altering the law as it has been understood 631 previously. Whether that be so or not, it is going to appear to all the world to alter the law, certainly to all the people in Ireland. That is the interpretation which is inevitably going to be put upon it by all persons in Ireland: that the Government today in this Bill are seeking to alter the law.
Further, my Lords, when one comes to look at the decision of the High Court in Ireland, and when one comes to see the rationale of the decision, is it not highly arguable that it is the High Court of Ireland who are right and it is Her Majesty's Government and indeed the English Judge who are wrong? In any event, it is highly arguable (to put it at its least, and my fear is) that the interpretation which is going to be put upon this in Northern Ireland, and indeed in Southern Ireland, is that the Government are in fact taking new powers and are conferring new powers upon the Government at Stormont.
The last matter, which is part of the same argument about the uncertainty of the breadth and the width of the language used in this Bill, relates to what the noble and learned Lord was speaking about; namely, that this Bill does not in any way alter the chain of command, and that the Commander-in-Chief and the British Government remain in full control of the Armed Forces. That may be so, but it depends upon a fine distinction between orders and powers. What the Bill says is that Stormont can confer powers on the Armed Forces, and indeed Regulation 38 purports to give powers to officers and to members of Her Majesty's Forces. So the Bill says that Stormont can confer powers and give authority to the Armed Forces.
The noble and learned Lord says, "But that does not mean that Stormont can give order to the troops." I accept that, but does it not mean that anybody in command in Northern Ireland will have to work within the framework of the powers that have been given by Stormont to the Armed Forces as a whole? I fear that there is going to be grave uncertainty, particularly in Northern Ireland, as to where the ultimate responsibility for the actions and the duties and the behaviour of the Armed Forces in Ulster really lies.
632 I would conclude by saying—and I apologise for taking up too much time at this very late hour—that we shall not oppose the passage of this Bill. I do not myself think that at this stage and with this very short notice the Bill can be suitably amended to meet the objections I have tried to raise. But I hope that when this Bill has gone through, as I have no doubt it will, the Government will be prepared at an early date to look again at this matter to see whether we cannot arrive at some formula which will be more satisfactory and which will more clearly define the rights and powers we want to confer upon the Government of Stormont.
§ 12.7 a.m.
§ BARONESS WHITE
My Lords, I am sure we can all fully understand the practical necessity for this legislation, but I hope that before we are asked to pass it we shall have an assurance from the Government Front Bench that this is to be regarded as only a holding operation, until we have had an opportunity, at leisure and with advice, to consider the points put forward, particularly by the noble Lord, Lord Foot, which seem to me to have great relevance. I was considerably disturbed when the noble and learned Lord on the Woolsack invited us to follow him in his opinion, which was that he was certain the Parliament of 1920, in this legislation, the substantive Act, had the intention which is embodied in the Bill now before your Lordships' House. I find that impossible to believe, because surely the intention in the relevant section of the Government of Ireland Act 1920, was precisely to keep away from Stormont the power to legislate for military forces of any kind. This was regarded as one of the safeguards at that time: that while this Parliament might have certain other powers, it did not have authority over the forces of the Crown. So I think that historically the noble and learned Lord is surely in error.
To come to present times, we have had certain discussions in this House—and it has been discussed in public—as to whether the whole responsibility for security, in the fullest sense of that word, should not be transferred from Stormont to the Government here at Westminster. We are now being asked to do something which, whatever the legality of it, will 633 surely appear to public opinion on both sides of the Border as though we are reinforcing the authority of Stormont in some way. This may not be the intention, or even the effect, of the Bill before us; but I cannot help thinking that this is going to be the impression that will certainly be created, more especially because, as the noble Lord, Lord Foot pointed out, of the extremely wide terms in which this Bill appears to be drafted. I am not learned in the law, but when I see something which refers to "all provision relating to members of Her Majesty's forces", I take that literally, because the proviso at the end says, "… in particular shall not preclude …". Well, this is just a matter of emphasis. If you are giving all provision, then you are just drawing attention as a matter of emphasis in the last few lines of the first clause.
At this late hour I do not want to prolong the argument, but I do not think we ought to pass this Bill without expressing disquiet. We understand the practical necessity for it, but I feel that before we pass it, we are entitled to an assurance from the Government Front Bench that this is to be regarded only as a holding operation until we have had the chance more fully to understand what is intended.
§ 12.10 a.m.
§ LORD DAVIES OF LEEK
My Lords, like my noble friend I was not trained in the law, but I was trained in semantics and logic and I have been looking at what this Bill means. The first thing that it says is:The limitations imposed by paragraph (3) of section 4(1) of the Government of Ireland Act 1920 on the powers of the Parliament of Northern Ireland to make laws shall not have effect, …So that is finished. That is the simple logic of what we are doing tonight.
My next problem concerns what the Act of 1920 says; so I take the trouble to look at it. The section we are talking about, Section 4, the Government have been kind enough to produce for your Lordships—which is a right and just thing to do. That section reads:they shall not have power to make laws"—this is in Northern Ireland, at Stormont—except in respect of matters exclusively relating to the portion of Ireland within their jurisdiction, …634 Now come the next vital words:they shall not have power to make laws in respect of the following matters in particular, namely:— …here I will jump the gun a little and come to paragraph (3):the navy, the army, the airforce, the territorial force, …et cetera. I need not read any more, because the logic and the meaning is clear so far as a layman is concerned.
I do not understand the acrobatics of judges, but I do understand the nuances of the English language. Consequently all I say is—and I do not want to detain this noble House longer at this time of night—that I think it is necessary (and I speak now to the noble and learned Lord on the Woolsack, with whom I had a little difference the other day about the emergency laws, but he may have been right and I may have been wrong) that the appeal of the noble Lord, Lord Foot, and my noble friend here should be listened to. In this transition period this should be a holding operation, otherwise the world will misunderstand the rapidity with which tonight we have rushed this Bill through these two Houses, and will misunderstand the objectives. I should not like that to happen at this delicate stage in international affairs, because there is enough misunderstanding about this little old country of ours at the moment. Consequently, I say that by this Bill tonight, and by what we are doing in this House and what has been done in the other place, we are giving certain rights to Stormont and certain interpretations which were not there hitherto.
§ 12.14 a.m.
§ LORD BROCKWAY
My Lords, despite the hour of the morning I am grateful for the delay since the first notice of this Bill was given. I think generally your Lordships will agree that it has been extraordinarily difficult, even after the Statement made by the noble and learned Lord, to appreciate all the implications of the measure which is now before us. Even when one had the text of the Bill in one's hands, for those of us who are not lawyers it was very difficult to follow. May I say to the noble and learned Lord that when he speaks about the principles of political philosophy I can follow him more easily than when he speaks of the intricacies of law. I have enjoyed that, as he knows, not 635 only in this country but also in Africa. But we have now had some time to consider this Bill, and the more I have considered it with those who have some knowledge of the subject the more uneasy I have become.
There have been many since last August who have sounded warnings that many of the actions of the Army in Northern Ireland have been illegal. Those warnings have been sounded not only by the National Council for Civil Liberties, but by many of those who have specialised knowledge in this field. I do not often agree with Mr. Enoch Powell, but I think that on this issue he has been absolutely right. He has argued that the Army has assumed the powers of the police in Northern Ireland, and that that is not a function for the military forces. The Army in Northern Ireland, almost uniquely, has assumed the functions of search and of arrest without warrant. That is not a duty of the military forces. That is a duty of the police, and Mr. Enoch Powell has been absolutely correct in urging that that demarcation should be observed. These actions of the Army are now admitted by this Bill to have been illegal under the Government of Ireland Act, which precluded the Stormont Government in Northern Ireland from introducing legislation relating to the Armed Forces, and our House tonight cannot possibly carry without some disquiet a Bill which is repudiating that constitutional principle.
Secondly, this Bill is retroactive. I wonder how many of us appreciate that the phrase in the Bill, which states that actions are "deemed never to have had effect", repudiates a legal obligation which our country has undertaken in the sphere of international law. We are contravening the European Convention on Human Rights. This is worth emphasising. This is the only international convention which has the force of law. There is the Declaration of Human Rights of the United Nations: that has no force of law. The European Convention on Human Rights has all the force of law upon our Government, our Parliament and our country. This Bill is fundamentally contravening that international law, and in that way, internationally, this is an illegal Bill.
636 Thirdly, I want to say this. I welcome the provisions in this Bill for safeguarding the position of individual soldiers in the Army in Northern Ireland. I regard them as the most terrible victims of what is happening in Northern Ireland to-day. That boys of 18 should be asked to undergo what we are asking of members of the Forces in Northern Ireland—[Interruption]. My Lords, I am not quite sure whether that interruption is in support of me or in opposition, but what I was saying was that the most desperate sufferers because of the position in Northern Ireland to-day are the boys of 18 who are in the Armed Forces. We are asking them to do an impossible task, and it makes me utterly ashamed that we should be requiring them to do the things they have to do. They are far worse sufferers than the Irish who are detained under the internment provisions. Therefore I welcome the fact that some provision is made in this Bill to safeguard them from damages which may arise as a result of their actions. But, my Lords, if we are to make that provision, what provision are we to make for those, recognised in this Bill, who have been illegally arrested and illegally detained without trial? Some of them have been found innocent; and in Committee I shall move an Amendment which will seek to ensure that, while we arc in this respect doing justice to those who are in the Army, we also do justice to those who have been illegally arrested and detained without charge or trial, and who equally have the right to compensation.
The last point I want to make—and I make it very seriously indeed—is this. We now have what is termed (and I say it with no disrespect) the Widgery Tribunal inquiring into the events in Londonderry. I am among those who have not only offered to give evidence personally, which I shall be doing, but who have also encouraged others to give evidence. I am among those who have urged the Northern Ireland Campaign for Civil Rights, the relatives of those who died in Londonderry and the Roman Catholic priests concerned to give evidence to that Tribunal. One had to meet considerable opposition. Those of us who have urged that have argued that this tribunal is the tribunal of the Lord Chief Justice, that it is a tribunal of law and, in that respect. we have said, "You 637 should make your contribution to it because it stands for the rule of law." What are we to say now?
§ LORD BROCKWAY
My Lords, someone has interrupted to say, "Say nothing!" That might even be the best course to adopt, because this Bill repudiates the rule of law. This Bill destroys the whole argument of those who have urged that evidence should be given to the tribunal. This Bill recognises that illegal actions have been carried out and, by retroactive clauses, says that we will merely wipe them all out. It is a repudiation of the principle of law for which the Lord Chief Justice stands and which has been the case for our argument in favour of giving evidence to this tribunal. I regard this as a disastrous measure which, if we had time to consider all its implications, would never receive the endorsement of those who believe in the supremacy of law and in the principles which ask our citizens to pay homage first to what is the law of the land.
I should like to move the rejection of this Bill. I refrain from doing so only because I am concerned about the members of our Armed Forces in Northern Ireland; but I hope during the Committee stage not only to move my first Amendment but a second Amendment, of which I have given notice, to the effect that the Bill should be reconsidered in one year's time when its operation has been allowed to be examined. I hope that this may be accepted by your Lordships.
§ 12.28 a.m.
§ LORD WELLS-PESTELL
My Lords, I make no apology for encroaching on the time of the House because I feel the matter before us this morning is a very serious one. I think we ought to give it whatever consideration we feel is necessary. We have had a very clear exposition of the Bill from the noble and learned Lord on the Woolsack but, having said that, I know he will forgive me for saying that I think we have had also a clear exposition from the noble Lord, Lord Foot. This gives rise to considerable doubt in one's mind as to which of the two noble Lords is putting the correct interpretation upon the Bill. What it is 638 sought to do this morning, we are told, is to restore the position to what we thought it was yesterday. From my point of view, I hope that we do so and I hope that this Bill will be passed. But what I ask your Lordships to concern yourselves with at this particular time is the fact that, because of the urgency of the matter, this Bill has had to be rushed—and I use the word advisedly—through both Houses of Parliament. This is an important Bill. If we believe today that the measures that are put before your Lordships' House did in fact exist, can we be sure that in three or four months' time the Bill now before us will bear the interpretation which this morning we are told it does?
I should like to ask the noble Earl the Leader of the House whether he will say definitely, and give us an assurance, that within the next few weeks time will be found for this House to consider all the implications of the Bill. I do not think that anything would be lost by spending a few more hours considering its implications. Many of us are very unhappy that Stormont should have as much power as it has at present. Many noble Lords, perhaps from both sides of the House, would not like to feel that Stormont was being given more power than it has had in the past. This Bill may not give more power, but are we certain of that? I conclude by again asking the Leader of the House whether he will say definitely that he will give an assurance that within the next few weeks—not months—time will be found for Members of your Lordships' House to discuss the implications, so that we may be completely certain that the interpretation of this Bill, as given by the noble and learned Lord on the Woolsack—whose authority in this matter I would not for a moment question—is the right one.
§ 12.32 a.m.
§ THE EARL of LONGFORD
My Lords, I remember that a good many years ago, when I was Minister of Civil Aviation, the officials in my Department took powers which enabled them to destroy every house within five miles of London Airport in order to cut down one tree which was thought to be impeding the approach to the Airport, and it could be that something of that kind has happened here.
639 I can understand and sympathise with the Government for having made a mess of this. They say that other people have made a mess of it in past years. They say that all Governments have been wrong together and so let us all stand in the dock over that. I was not in the Government when the Army went into Northern Ireland in the new sense, but I might have been, and I am quite ready to share that point of view. Nevertheless, the question must concern all of us as to whether, in order to provide indemnity for what was done in a legitimate misunderstanding of the law by troops in the last few years, we have to pass this Bill at a few hours' notice. I hope that I may say without offence to the noble and learned Viscount and his legal colleagues, that it is impossible to believe that all legal wisdom has suddenly descended on them—
THE LORD CHANCELLOR
My Lords, what I will not forgive is that for the third time the noble Earl has called me a noble Viscount. I assure him that I am not a Viscount; I am a Life Baron.
§ THE EARL OF LONGFORD
My Lords, I am not exactly the one to talk, but the noble and learned Lord has changed his name and style so often that we must all be allowed to fail to keep up with him.
§ THE EARL OF LONGFORD
My Lords that is a wonderful joke, but it is the one I made myself two minutes ago, so I do not know why the noble and learned Lord thinks it is so amusing. It is what I actually said. However, the noble and learned Lord is looking much happier than he was a few minutes ago when I felt that he was depressed by this dreadful little Bill for which I cannot feel that he takes full responsibility.
The noble Lord, Lord Brockway, has called it a disastrous Bill. I would call it a rather regrettable and dangerous Bill. I think we must agree with what has been said by noble Lords on these Benches, that this will be generally understood in Northern Ireland—and not by 640 ill-intentioned people—as giving new powers to Stormont. That is inevitable. They will not all read that at 12.30 a.m. the noble and learned Lord said that no new powers have been conferred. This must seem to confer new powers on Stormont. The idea that the latest move is to give new powers to Stormont would surely beggar the imagination of someone far less intelligent than the noble and learned Lord. This surely is a very dangerous thing. It has come about, if you like, through a legal muddle; but we are told that it all has to be done in the middle of the night, because otherwise to-morrow—well, I do not know what would happen to-morrow if this Bill were not passed to-night but in a day or two—the Army would have to proceed under Common Law. Is it so appalling that they could not break into anybody's house or intern anybody for 48 hours? That is as I understand the situation to be. Is that wrong? I do not see any reason at all to so rush through this Bill that quite inadequate attention is given to it. I must assume that it was only to-day that the noble and learned Lord and his legal advisers were able to bring their minds to bear upon it. We cannot suppose that this is the height of their considered wisdom. There is no reason to think that at all. They have rushed into this and have taken these powers to destroy these thousands of houses in order to cut down one tree. Surely what the noble Lord, Lord Foot, said is incontrovertible. We are told that this Bill declares the law. In fact, it contradicts the law. One cannot get round that. We are told that we must pass this Bill otherwise some ghastly consequence will ensue by breakfast time. Well, a pistol is held at our heads, and no doubt we shall be subdued by superior numbers, but not by superior reason.
I think it is a disgrace that at this short notice a Bill of this kind should be brought forward containing provisions which are so completely contrary to what the Bill proposes to do. I do not want to take up any more time at this stage, because there are Amendments to come. I sympathise with those who say they are very sorry that this situation has arisen, and hope that even now—I suppose it is too late to hope—the noble and learned Lord the Lord Chancellor, a very fair-minded man, will see the 641 force of the objections made by the noble Lord, Lord Foot. Until he gives an answer to what the noble Lord, Lord Foot, said, he is bound to come before us as someone who brings forward a Bill which flatly contradicts its declared purposes.
§ 12.36 a.m.
§ LORD SHACKLETON
My Lords, it is not for me to defend the Government's action in relation to the introduction of this Bill, and indeed the Government have something to answer in the debate. But having listened to my noble friend Lord Longford, I must say that I am not in agreement with him as to his judgment on the necessity of this Bill at this moment. I think the Government have much to answer for, and if I may say so, that is admitted by the previous Government in this respect. As I understand it, there is no admission by the Government that what has been done has been done illegally. They say that the purpose of the Bill is to clarify by a declaratory statement certain actions. As my noble friend Lord Longford has said, it makes no difference to the effect of the Common Law and the operation of the Army under the Common Law. But when anyone suggests that at a moment like this it would be right to deprive the Army of the right to search—and I am one of those who has been most doubtful about the wisdom of introducing internment in a situation such as this; but it has always been my view that as soon as it was introduced it was not possible to stop it—I cannot agree.
I think that this Bill has to pass whether we like it or not. It is, as the noble and learned Lord said before, an unattractive Bill. The procedure that we have adopted is an unpleasing one in a democratic State, and it is unpleasing that either in another place or in this House we have to proceed in this sort of way. As my noble friend Lord Shepherd said, no doubt we shall have to look to see whether we cannot improve our procedures, perhaps by some special Select Committee to go into the matter, so that the very powerful points made by the noble Lord, Lord Foot, and my noble friends can be threshed out, not under the immediate, almost guillotine effect of having to pass a Bill—and we all know that we have got to get this Bill through to-night—but so that 642 we can have the benefit of some sort of report. Now the noble and learned Lord who sits on the Woolsack—the noble and learned Lord, Lord Hailsham of Saint Marylebone, to get his title right—has, I think, done his best to help the House and I would ask him to go on helping us. I would ask him in particular to answer—not perhaps at too great length—some of the very important points that have been raised, because clearly we shall be going on to a Committee stage and I think we shall be sitting here for quite a long while. The thing which is worrying me at the moment is the growth of violent feeling, not only in Ireland but in this country also. We ought not to lose our own sense of responsibility and do things in response to a violent reaction, but there is no doubt that if we do not pass the Bill tonight the people of this country are going to be pretty angry about it on behalf of the Army in Ireland.
§ LORD SHACKLETON
Now everyone has paid tribute to the Army in Ireland, and has said that they are the victims. My noble friend Lord Brockway used strong language about the tragedy of their being asked to do what they are doing, but in this situation we do not have much freedom of choice; and I have no doubt that the purpose of this Bill, whatever its further implications may be, is one that Parliament and the people of this country are prepared to accept. At the same time, I am quite sure that we have to find a way to look at the small print in rather more detail than is possible in these circumstances. Therefore I hope that the noble Earl the Leader of the House will respond—I do not ask him to do so now—to the appeals made by two of my noble friends that we might consider whether there are ways of examining this in more detail.
In the meantime, I think we should give the Bill a Second Reading. It reminds me painfully of another Bill, the Commonwealth Immigrants Bill, about which my noble friend Lord Brockway was also very active in the small hours; but we are all toads under this particular harrow, and I think the sooner we get the Second Reading through the better. However, I should like a further explanation (and the greatest patience) from the 643 noble and learned Lord, Lord Hailsham of Saint Marylebone, at not too great a length.
§ 12.43 a.m.
THE LORD CHANCELLOR
My Lords, my papers are now in such a muddle that, with the greatest patience at my command, I shall be rather ill found to establish a complete inventory of all the points that have been made. I was grateful to the noble Lord, Lord Shepherd, for his opening remarks. The House is indeed in a position of difficulty, and it is placed in this position by a situation which was unexpected, if not altogether unforeseen for a day or two, but the knowledge of which I obviously could not share with other noble Lords. Therefore I think that I should perhaps begin by saying in general terms that I understand that in another place the Lord President of the Council has given an undertaking that discussions will be held through the usual channels about the timing of a debate on all the wider issues that have been raised. I am not authorised explicitly to speak on behalf of my noble friend the Lord Privy Seal, but I have no doubt that similar undertakings can be given here, when and if required, although my own feeling is that events will probably overtake this particular measure in various ways, some of which I think I can foresee and some of which I am not sure that I can foresee.
With great respect to the noble Lord, Lord Foot, I thought he had not got the Bill right. I do not say that in any sense by way of reproach; this is a technical Bill and it has been wished on Parliament at relatively short notice. Everybody has had to do the best he could to deal with its terms in the best way available. With respect to the noble Lord, he read the word, "all" as if it were the word, "any", and that is a fundamental error in construction. "All" is not the same as "any". The Bill does not say that the Northern Irish Parliament are not precluded from making "any" provision whatever about the forces; it says only that they are not precluded from making "all" provision; that is to say, they are not wholly prevented from making provision. The decision of the High Court in Northern Ireland which precipitated these discussions purported to say that "all" pro- 644 vision which related to members of the Armed Forces on duty were within the mischief of the prohibition of Section 4 of the Government of Ireland Act. All the Bill purports to say is that it is not so, and that there may be some provisions relating to the members of the Armed Forces when on duty which are not within the mischief of the prohibition of the Government of Ireland Act.
At this stage, out of turn but logically, I should like to confirm what the noble Lord, Lord Shackleton, said about the effect of the Bill in contradiction, albeit courteous contradiction, of one or two of the things said by the noble Lord, Lord Brockway, and the noble Earl, Lord Longford. The Bill does not admit that there has been any illegality whatever; it makes no such admission. The noble Lord, Lord Shackleton, was perfectly right in his point that there are evidently two possible interpretations of the Government of Ireland Act 1920. One is the interpretation which has been universally held to be the law hitherto and which some (I say this without any kind of aspersions on the powerful High Court of Northern Ireland) may still think is the better view: the view of Mr. Justice Ackner last September; the view of the Labour Government; the view of the Stormont Government; and the view of the Westminster Government now. It is obviously not the only view. The other view is that taken by the High Court of Northern Ireland.
What the Bill purports to say is that, without waiting for the decision of the House of Lords on appeal, the matter has become so urgent because it relates to matters of search for firearms, and the like, that we must legislate to declare which of those views is correct. This is the High Court of Parliament, and the High Court of Parliament in matters of doubtful law is entitled to legislate and so cut the Gordian knot of legal difficulty. This is what this Bill purports to do. That is why the argument of the noble Lord, Lord Brockway, to which I will come in a moment, is based upon a false premise. There is no admission of illegality here. There is a candid statement that we thought that what was being done was legal, and an admission that a court in Northern Ireland, for which we have high respect and regard, has decided to the contrary. It does not 645 mean we are making any admissions that we were wrong. That is the basis upon which the law was based.
The noble Baroness, Lady White, at this stage says that as a matter of history I am wrong in saying that the Government of Ireland Act 1920 always was intended to have that effect. With respect to her, she did not understand what I was saying. Obviously the Government of Ireland Act 1920 intended to keep legislation about Her Majesty's Forces in the hands of the Westminster Government: that is where it is, and that is where it will remain under this Bill. What the Government of Ireland Act 1920 did, in our belief and in the belief of others who happen to have the misfortune to differ from the High Court in Belfast, was to allow, so we thought, the Government of Stormont to confer powers on Her Majesty's Forces which they could confer on anybody else—on the noble Lord, Lord Foot, or on me, or on Mr. Ian Paisley or on Miss Bernadette Devlin. They have power to do all that; but, so the High Court in Stormont has decided, the only people on whom they have not the right to confer these powers are people who happen to wear Her Majesty's uniform. It so happens that I think, and this is the answer to the second part of what the noble Lord, Lord Foot, was saying, that among all the persons who happen now to be dwelling within the Six Counties the most suitable to be given powers of search and arrest are those who happen to be wearing Her Majesty's uniform. They at least are under discipline. They at least are under the command of Her Majesty's Government here. They at least are not independent actors like constables. They are under orders, and precisely because these powers are of a wide nature it seems to me to be more suitable rather than less suitable that it should be at least open to the Northern Ireland Government before the passing of this Bill and after the passing of this Bill, by the authority of this House and of the other place, to say to Her Majesty's Forces that they are not to be second-class citizens in this matter. That seems to me to be the essence of this Bill.
Of course the fact that powers may be conferred upon the Forces to search for arms and to arrest or ask for information 646 —powers which are absolutely essential for the carrying out of their duties—and that those powers may have their legal root in Stormont legislation does not mean either that they will be used at all (although of course they will) or that they will be used under the orders of the Stormont Government. They will continue to be used, as they are being used now under the orders of the officers commanding the troops; that is to say, under the orders of the officers commanding the troops who are under the responsibility of Ministers who are responsible to this House and whose Minister of State is in this House. In other words, so far from giving an additional power to Stormont, what the Bill is doing is to validate an existing supposed power of the troops the use of which, although not the legal root of which, is already within the responsibility of this House.
That does not seem to me to be quite subject to the sort of objection to which the noble Lord, Lord Foot, and the noble Baroness, Lady White, seemed to think it was, and I feel that on reflection, once they have accepted as I have said, that there will be a great deal more to be said about Northern Ireland either in this connection or in some others in debates to be arranged through the usual channels, they will feel that there is not quite the ground for disquiet in the language of this Bill which they at first thought.
I now come to the speech of the noble Lord, Lord Brockway. He said that he understood me when I was talking about political philosophy but he did not understand me when I was talking about law. Regrettable as that may be, that was painfully obvious because it was evident from everything he said that he had a very hazy idea about what the law was. The first thing he said was that the Army had assumed powers of police search warrant and arrest without warrant. My Lords, the Army has assumed no powers whatever; the Army has been given powers. What we are discussing here is not either whether it should have them or whether it should be allowed to assume them. It is not assuming them; it has not assumed them; it has not purported to assume them. It has acted in accordance with a power which was purported to be conferred by the Stormont Parliament and which the High Court in Belfast has said that the Stormont Parliament 647 had no power to give. And so we are allowing the power ourselves. That is the purpose of this Bill. The Army has not assumed powers. It has been given powers, and those powers are powers which are admittedly necessary if it is to be there at all and be of the slightest use in the present emergency.
Then Lord Brockway went on to say that it was admitted by the Bill that what the Army had done is illegal. The noble Lord, Lord Shackleton, has already dealt with that point, so I will not deal with it again. He next said that the Bill is retroactive. Of course it is retroactive. That is what it is about. The object of the Bill is to validate something the legality of which has been questioned by the whole High Court in Belfast. Retroactive legislation is a very unpleasant thing, but if the House had thought that it was objectionable on that ground it would not have had to wait for the noble Lord, Lord Brockway, to throw it out. This is what the Bill is for. He then went on to say that the Bill contravenes the European Convention on Human Rights, but he gave no particulars of that, so it is quite impossible to deal with general allegations of that kind. He then gave us preliminary notice that he was going to move an Amendment about illegal detainees when the only certain fact about internment, if that is what he is talking about, is that it is done under the order of the Minister in Northern Ireland and not under the order of the Army at all. So that cannot have very much validity.
He ended up with a fine peroration about Lord Widgery, who is there to inquire into the facts and not to apply the law of Northern Ireland, which he has no authority or jurisdiction to do. So I do hope that the noble Lord, Lord Brockway, will understand me this time when I am talking about the law, because I must tell him that if at the end of the day he is utterly unwilling to understand what a man who has given forty years of his life to the study of the law is saying to him, it can only be because he is a person of unusual perversity.
§ LORD SHACKLETON
My Lords, if I may interrupt the noble and learned Lord, up to about two or three minutes ago he was doing very well. If he would 648 refrain from attacking my noble friends we shall proceed better.
THE LORD CHANCELLOR
Well, my Lords, I thought the noble Lord called this a disastrous Bill. I think there has been levelled a good deal of criticism. He must not mind if a little criticism is made of his speech. I would say this by way of general comment upon some of the speeches, and not only the noble Lord's, which were made opposite. I must say that if I thought this was a disastrous Bill I would not have hesitated to oppose it on Second Reading. I would not have said, "Of course it has got to be passed." I would have called for a Division. The fact is that this is a Bill which is required and, I believe, admittedly required. Now another argument put forward—
§ LORD BROCKWAY
My Lords, I thank the noble and learned Lord very much. I am so much obliged to him. I just wanted to say to him that I did not mind in the least his remarks about me. They just passed like water.
THE LORD CHANCELLOR
My Lords, I am glad the noble Lord does not mind. I rather suspected he did not, because he and I have been political opponents for a very long time and I think he understands that my criticisms of him are based on that footing and are not intended to convey any personal imputation against him, whom I have known and respected for a very long time. I am very grateful for what the noble Lord has said.
But there is another criticism that I would make of some of the speeches from noble Lords opposite, which seemed to me to be rather willing to wound yet rather afraid to strike. I am referring to the kind of argument that says: Assume that this Bill is perfectly harmless, that it is doing exactly what the Lord Chancellor says and that it is not open to the objections which have been put upon it. Yet people in Ireland will think so. Therefore the argument is that we must say that people in Ireland 649 will think so, although we will not vote against it. With the greatest respect to the noble Lords who said this—and more than one noble Lord did—I think that in Ireland in the present climate of opinion there is such a tendency on behalf of both sides to believe what is not correct that nobody should seek to give currency to a view which is not correct without expressly stating that it ought never to be held. I think it does infinite harm, and I believe that I am entitled to say to your Lordships that I wish those noble Lords who put that argument forward, instead of putting it in the way they did, would go about in Ireland explaining why the view which people are so ready to hold is not the correct view, and that people whom they have known for years in this House in public life are not the kind of people that the people in Ireland are rather too ready to assume they are. I feel that rather strongly.
The noble Lord, Lord Wells-Pestell, said that he had doubts whether the noble Lord, Lord Foot, or the Lord Chancellor was right on the points of construction. Well, if I have not helped him to a conclusion about that by now, I trust that I shall be able to do so on some subsequent occasion. But I do not think that I can add anything to that now. The noble Earl, Lord Longford said that the Government had made a mess. I do not think that either the previous Government or this Government made a mess. If anybody made a mess—and I am not admitting necessarily that a mess was made—it was made by the anonymous draftsman of the Act of 1920, who failed to create a clear impression of what he really intended; and I do not think that any of us need to be wearing too many white sheets on the present occasion, disagreeable as the present situation is.
I do not agree that this is a Bill which gives power to cut down thousands of houses in order to destroy one tree. I explained in great detail earlier this afternoon exactly what the Regulations did which the Bill seeks to validate, and they cover the whole range of security in Northern Ireland. So that was another perfectly wild statement; and, if I may say so, though the noble Earl talked about a pistol being held to his head, this is in fact a Bill to prevent pistols from 650 being held to people's heads, and I think he should be careful of the analogies which he chooses to draw in this particular connection. Apart from his savage attack upon me (which is not the first), I approved of almost every word the noble Lord the Leader of the Opposition said. I am glad to see him back from his well-earned repose, looking so well and in such high vigour; and I am glad to find that on matters of substance there is no difference between us. With those remarks, my Lords, I hope that he is satisfactorily assuaged, and I hope that the House is ready to come to a decision.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ 1.5 a.m.
THE LORD CHANCELLOR
My Lords, I beg to move that the House do now resolve itself into Committee on the said Bill.
§ Moved, that the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD HENLEY in the Chair.]
LORD BROCKWAY moved to add to Clause 1:
Provided that appropriate damages and compensation shall be made for those not found guilty in courts of law on charges involving internment or detention as a result of things done by Her Majesty's forces when on duty in Northern Ireland.
§ The noble Lord said: I do not want to detain the Committee at any length on this Amendment, though I wish to press it very seriously indeed. I think it has already been made clear that those of us who are supporting this Amendment appreciate very deeply the provisions in this Bill which will allow members of the Armed Forces to be exempted from the consequences of actions in damages or in compensation by any decision in the courts. I think it very important indeed, if there is to be fairness in this respect, that this should also apply to those who have not been found guilty in courts of law on other charges. Some of those who have been interned and detained have subsequently 651 been found not guilty and have been liberated. Many in this House will very much regret that internment has been applied in Northern Ireland and that persons should be involved in internment for indefinite periods without charge or trial. This Amendment is making the very fair suggestion that, in addition to the provisions of this Bill which will safeguard members of the Forces from being charged when they are obeying orders, appropriate damages and compensation shall be made to those not found guilty in courts of law on charges which involve internment or detention. It is very necessary in the present situation, when we are passing a Bill of this character, that we should show a sense of balance and of fairness in the situation of Northern Ireland. It is for that reason that I beg to move.
§ THE EARL OF LONGFORD
I should like to second this Amendment, unless the noble and learned Lord, the Lord Chancellor is going to accept it, in which case my remarks become otiose. I do not want to waste the time of the Committee if he is going to accept it.
THE LORD CHANCELLOR
I am not sure what is required of me. I was waiting to hear the debate before replying.
§ THE EARL OF LONGFORD
In that case I would second the Amendment. I suppose noble Lords who have been over in Northern Ireland in particular, and all those who keep in touch with the situation, will be aware that there are three kinds of action which the Forces have been taking, under the policy of the last Government and this Government, during the last 2½ years. On the one hand, there are acts which indisputably have been performed, breaking into people's houses, lifting all sorts of citizens without any warrants, and acts which would certainly not be permitted in Chelsea or Kensington. Those are acts which are clearly necessary, or thought to be necessary, under a policy of internment. These are acts which at any rate we are not arguing about now. We understand that they will be in some way protected under this Bill, and I am not complaining about that, though I disagree strongly with the policy of internment.
Then there are actions which are alleged to have taken place in large 652 numbers. Even since the debate in this House a fortnight ago, I have had twenty complaints at least—rather well documented complaints—about the behaviour of the Army and the Special Branch of the Ulster Constabulary, which I have passed to the Ministry of Defence, who are looking into them. At any rate, there are a great many complaints of that kind which may lead—in some cases have already begun to lead—to legal action. There are those actions which are disputed. They are allegations and are not necessarily accepted. But between those actions there would be the kind of internment referred to by the noble Lord, Lord Brockway, when people are "lifted", detained, interned, without any special complaint except that they may have had some rough handling; but they have the complaint that they have been detained without trial. There is no dispute about that because I have talked to people myself who have been arrested, held for several months, and then released.
There are those three types of people, and in the last two cases there may be a number of legal actions, some of which have been started and one of which has been successful. The noble and learned Lord the Lord Chancellor says that no one will be protected against a charge of illegal action who would not have been protected. I understood him to say that no member of the Forces will be protected against a charge of illegal action who would not have been protected yesterday. Is that contained somewhere in the face of the Bill, or is that a personal assurance? I naturally accept his personal assurance—I accept it from him and from no one more so—but I wonder whether he can explain how it is provided in the Bill that if ayone has a legal action, or had one until now. this will still stand, and that an immunity will not be conferred.
§ 1.13 a.m.
THE LORD CHANCELLOR
Although I did not give him any indication, the noble Earl was right in thinking that this Amendment is not acceptable to the Government. It is an Amendment which, I am sorry to say, betrays a complete misunderstanding about what this Bill is about, although I have done my best to explain it. The Bill is designed to remove a ground of invalidation of cer- 653 tain Regulations. It does not apply directly to any actions at all. It validates, as from the beginning, the Regulations which I enumerated this afternoon. So far as I remember they were Nos. 4, 5, 6, 7, 11, and 38, although I may have got them slightly, but not very much, wrong. They are Regulations dealing with search, arrest, seeking information, searching for firearms, stopping vehicles, I think, and telling crowds to disperse. In other words, they are not Regulations which have to do with detention; they are not Regulations which deal with internment.
Under the Regulations, detention and internment are carried out by the civil authority of one sort or another. I think detention may be by the police and internment by the Minister, but they are neither of them, as such, carried out by the Armed Forces. Therefore, this Bill has nothing whatever to do with them. If the noble Earl asks me whether that is something contained in the Bill my answer is that it is precisely something which is not contained in the Bill but excluded from it, and excluded by its terms from it. If he asks me whether that is my personal assurance, my reply is that that is the best of my professional opinion. I do not know that I can say more than that.
I ought perhaps to deal with the earlier part of the noble Earl's question. If the noble Earl is complaining that there have been actions in which the troops have exceeded their purported powers of arrest, either by going outside the powers which were purported to be conferred, or by misbehaving themselves in some way, either by assault or by force of some kind greater than was necessary and so on, it may be, or it may not be, that the party affected would have a legal remedy. Such a legal remedy, if it exists, is not taken away by this Bill, and the reason why it is not taken away by this Bill is that this Bill purports only to validate certain Regulations; it does not purport to validate any actions except in so far as they were covered by the Regulations. Again, if the noble Lord asks me whether that is in the Bill, the answer is that it is in the Bill in the sense that the Bill expressly excludes that area of validation. If he asks me whether that is my personal assurance, I can tell him that that is the best of my professional 654 opinion, and I am trying to help the Committee.
But all that this Amendment would do, if it did anything—although it is in itself meaningless, as I shall try to show in a moment—is to give rights for damages which already exist, or, conceivably, for something other than internment or detention, where a right of damage would exist for the benefit of a detainee or an internee as a result of the use of one of the powers in the Regulations which is validated. If it means the former, it is otiose. If it means the latter it is objectionable, because in fact we intend to indemnify the Forces and the Government against proper use within the ambit of the powers purported to be conferred, the validity of which was questioned by the Northern Ireland judgment yesterday. I have honestly done my best to explain that to the noble Lord. I am afraid that he is still looking puzzled, but I have tried to explain why it is that this Amendment is not acceptable to Her Majesty's Government.
§ LORD SHACKLETON
It is quite likely that any Amendment moved at short notice is not going to be satisfactory, and there is no blame attaching to my noble friend or to anyone else in this matter, although I am not suggesting that the noble and learned Lord was saying that there is. What I think concerns a number of people—and I have heard this expressed already by lawyers—is that up till to-day, or a couple of days ago, the state of the law in Northern Ireland appeared to be clear. It then came into doubt and to-day, by validating certain actions taken, we are taking retrospective action in the sense that the law is open to doubt. I may be misinterpreting my noble friend, but what I think concerns him, and what concerns us, is that we need to be very careful. The noble and learned Lord will recall the anxiety over the Burmah Oil Company and various other matters.
By this Bill are we taking away a right of anybody, regardless of this Amendment? We could raise these points on the Question, Whether the Clause shall stand part of the Bill. Are we taking away the right of anybody to bring an action for any purpose broadly associated with the action of the troops or the security forces? Are we to-day taking away that right to bring an action, 655 whether for wrongful arrest or for wrongful order? Obviously, we are making an order for a demonstration to cease or for somebody to stop marching. We are now making such power more legal than before. But are there any circumstances in which an arrest has taken place when it would have been possible to bring an action? I must apologise to the noble and learned Lord and ask him to be patient with my ignorance of the law in this matter, but it seems to me that we may be taking away a right of this kind. In so far as the law is at least in doubt, the Bill contains a retrospective element, and I think this causes some worry to a number of us and not just to those on this side of the Committee.
THE LORD CHANCELLOR
This being Committee stage, I can speak again if the Committee desires me to do so. This is a totally different point. I was speaking about the Amendment, which is related tothose not found guilty … on charges involving internment or detention …That is a phrase I do not understand, but it is limited to that and I was dealing with that. Obviously this can take away a right of action. Let me give an example. Suppose that, six months ago, the troops marched into a house in Belfast under the right of search conferred on them by whichever Regulation it is and found there under the floorboards which they prised up a cache consisting of 14 machine guns and 24,000 rounds of ammunition which they prised up. They had no right to do that unless they were given power to do it. I am assuming for the purposes of this case that that is the only objection that the owner of the house had to what they did: in other words, that when they say they found the arms there, they were there; that when they were there, they were there illegally; and that no more force was used than was reasonably necessary to effect the search and recover the arms. I am assuming those things in favour of the troops.
If there is doubt as to whether they entered into the house legally or illegally for the purposes of the search, it is of course conceivable that the owner of the house with the 14 machine guns and 24,000 rounds of ammunition might bring an action against the soldier who went 656 into the house. If all the soldier can say is, "I went in by virtue of Regulation 4 or Regulation 5," or whatever it is, the owner of the house may say, "But that Regulation has been held invalid by the High Court, and you must pay me damages for the damage to my house and you must pay me the value of the rounds of ammunition and all the machine guns." I am afraid that this Bill does take away his right to such damages, and it is intended to do so.
§ LORD BROCKWAY
I want to say only a few words before I ask the Committee to vote on this issue. The first is to express appreciation for what my noble friend Lord Shackleton has said about the difficulty of tabling Amendments at the very short notice which this Bill has allowed. Indeed, on both sides of your Lordships' House I was told that it would be quite impossible to table an Amendment on this subject which would be in order on this Bill. I have succeeded in doing so, but I appreciate that the terms of the Amendment may not be entirely satisfactory.
I want to reply to one point which the noble and learned Lord made. He said that the Army was not responsible for internment or detention. I accept that. The Amendment does not suggest that they are. The Amendment suggests that the members of Her Majesty's Forces are responsible forthings done"—that is a rather inadequate phrase, but it is taken from the Bill itself—… when on dutyin Northern Ireland. I do not think there is any doubt that actions which members of Her Majesty's Forces have done led to internment and to detention. All this Amendment is seeking to do is to ensure that there shall be the same justice in the way of damages, in the way of compensation, to those who have suffered by being detained and interned as the result of those actions, without being found guilty in the courts, as there would be to soldiers in respect of their actions under this Bill. I very much hope that the Committee will agree to this Amendment.
§ 1.25 a.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 3; Not-Contents, 62.657
|Barrington, V.||Brockway, L. [Teller.]||Longford, E. [Teller.]|
|Aberdare, L.||Ferrier, L.||Mowbray and Stourton, L. [Teller.]|
|Albemarle, E.||Gainford, L.|
|Aldenham, L.||Gisborough, L.||Nugent of Guildford, L.|
|Aldington, L.||Glasgow, E.||O'Neill of the Maine, L.|
|Alexander of Tunis, E.||Gowrie, E.||Onslow, E.|
|Amherst of Hackney, L.||Greenway, L.||Rankeillour, L.|
|Balerno, L.||Grimston of Westbury, L.||Redmayne, L.|
|Belhaven and Stenton, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Reigate, L.|
|Belstead, L.||Rowallan, L.|
|Bessborough, E.||Henley, L.||Ruthven of Freeland, Ly.|
|Brougham and Vaux, L.||Hives, L.||St. Just, L.|
|Carrington, L.||Jellicoe E. (L. Privy Seal.)||Saint Oswald, L.|
|Conesford, L.||Killearn, L.||Sandford, L.|
|Cowley, E.||Kinnoull, E.||Sandys, L.|
|Craigmyle, L.||Lansdowne, M.||Selkirk, E.|
|Davidson, V.||Lauderdale, E.||Sempill, Ly.|
|Denham, L. [Teller.]||Lothian, M.||Stamp, L.|
|Drumalbyn, L.||Lovat, L.||Terrington, L.|
|Elliot of Harwood, B.||Lyell, L.||Thorneycroft, L.|
|Emmet of Amberley, B.||Macleod of Borve, B.||Tweedsmuir of Belhevie, B|
|Falkland, V.||Milverton, L.||Windlesham, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ 1.34 a.m.
§ Clause 1 agreed to.
§ LORD BROCKWAY moved the following Manuscript Amendment:
After Clause 1, insert the following new clause—
("This Act shall operate for one year from the date of Royal Assent and shall be renewable only on an affirmative Resolution of both Houses of Parliament.")
§ The noble Lord said: I move this Amendment largely because I should like some assurance from the Government on this matter. I think it is generally recognised that this Bill is being rushed through Parliament and it may easily be that there has been an absence of consideration of its actual terms. There is wide uneasiness about how the Bill will operate when it becomes an Act. An Amendment similar to this was moved in another place, and as a result of the speech from the Front Opposition Bench an assurance was given by the Government that they would look very carefully indeed at the working of the Bill when it becomes an Act and would give some opportunity to Parliament to review it if that working was not satisfactory. I do not propose to press this Amendment to a Division, but I should like to ask that an assurance should be given in this House similar to the assur- 658 ance that was given in another place. I beg to move.
THE LORD CHANCELLOR
I am grateful for the noble Lord's assurance that he does not mean to press this Amendment. I am not at all sure of the exact words of the assurance that was given in another place, but I think, taking my courage in both hands, I can promise the same assurance totidem verbis, mutatis mutandis, and I hope that that satisfies the noble Lord.
§ LORD SHACKLETON
I would ask the noble Lord, without going into Latin, how we have a Supply Day in this House.
THE LORD CHANCELLOR
We have so many facilities in this House that I think we can have as many debates as the noble Lord wants, if the negotiations take place through the usual channels. I said in the Second Reading debate that I thought that probably events will overtake this particular Bill, which I think is less important that some people have thought, and that the debate which will take place will probably be wider in scope when it comes; but I am perfectly prepared to give the same assurance as was given in the other place. There is nothing I want less than to restrict discussion on this unhappy subject. When we have had a little time to see how it works, if a debate is desired I am sure we can have one.
§ LORD SHACKLETON
The noble and learned Lord keeps on making remarks of a very—let me get the right word—pregnant or suggestive kind as to what will overtake this present Bill. I should not wish to press him very hard on this matter but I would ask him, and also the noble Earl the Leader of the House, to take note of the substantial concern that is felt, I am sure, by the whole House, and indeed, by the noble and learned Lord himself, about a Bill of this kind. I am not quite happy that it should be suggested that anything they can do in another place we can do as well, and possibly better. I should like to think that this matter is going to be taken very seriously, and I believe my noble friend would like not the general assurance that we will do whatever they do in another place, but that we will have talks on how to handle this matter in the future, and indeed a certain amount of retrospective examination. I think the noble Earl was in fact intending to consider this suggestion. We raised this point earlier on—I do not wish to prolong proceedings—and it is a serious matter.
I, too, have no great desire to prolong proceedings. I recognise the seriousness of this subject. I think there are two matters here. One is the procedural point which I think the noble Lord, Lord Shepherd, raised, and that is certainly something that we could look at perhaps through the medium of our Procedure Committee. Then there is the other question of whether we need a deeper and further look at what has arisen in this debate. That is something that we can discuss through the usual channels. I think we can leave it there. I should be very willing to look at this procedural point.
§ LORD BROCKWAY
I am a little disappointed by the response from the Government Benches. I think this Amendment is extraordinarily moderate. I am perfectly sure that before a year has passed this Bill will be obsolete. No one can look at events in Northern Ireland without appreciating that before a year has gone by events will have taken place which will have overtaken this measure. All the Amendment asks is that we should look at the matter in a year's time and that the Bill should not be renewed for more than a year without 660 the consent of the two Houses of Parliament. That is a very moderate proposal. I would just say to the noble and learned Lord that I understood his Latin even less than I understood his discourses upon law, and therefore am unable to accept what apparently were the assurances which he gave in response to the Amendment which I brought before the Committee. Perhaps the noble and learned Lord would like to make a comment.
THE LORD CHANCELLOR
I thought I was giving the noble Lord exactly what he had asked for, neither more nor less; but if he is thinking of this Amendment seriously (as he said he was when he proposed it) I shall have to deal with its merits, which are very small indeed. He asked for an assurance, and I thought I had given him one, in the same terms, although I was not exactly sure what those same terms were, as was given in another place. I did not say, as the noble Lord, Lord Shackle-ton appeared to think, that we would do everything which was done in the Commons: I said that I would give an assurance in the same terms as that given in the Commons, and that seemed to me the proper thing to do. I do not know what more the noble Lord wants; but if we are to discuss the merits of the Amendment I shall have to explain why it is no good.
§ LORD BROCKWAY
I should love to hear the noble and learned Lord do that. I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clause agreed to.
§ House resumed: Bill reported without amendment; Report received.
§ Moved, That the Bill be now read 3a—(The Lord Chancellor.)
§ 1.44 a.m.
§ LORD SHACKLETON
My Lords, I should like to ask the noble and learned Lord again how long this Bill is going to last and how soon is the new initiative which is apparent from his remarks going to overtake it.
THE LORD CHANCELLOR
My Lords, I never said anything about a new 661 initiative; nor is it within the scope of this Bill. What I did say was that I thought events would overtake it, and I am afraid that this was based on bitter experience of the last two years: that events in Northern Ireland do take place every day which necessitate at any rate some discussion in this House. This must colour any future debates that we have. That is all I meant. I do not know why the noble Lord should impute to me a promise of some new initiative which I never made. I am not saying that there will not be one.
§ BARONESS WHITE
My Lords, with great respect to the noble and learned Lord, the construction most of us placed upon his remarks was that he really meant something by them, and that there was some intention that the Government would be taking some new initiative which would mean that we did not have to worry so much about this Bill because the Government were going to propose something else, and coming events were casting their shadows before.
THE LORD CHANCELLOR
My Lords, if I may be allowed to make a second intervention of an equally short duration, I cannot think why the noble Baroness put that construction on what I said. When she looks at Hansard tomorrow morning she will see beyond peradventure that the construction she sought to put upon it was stretching it beyond what it would bear.
§ LORD FOOT
My Lords, I wonder whether I could detain the House for one or two minutes before we conclude the discussion on this Bill. Some noble Lords who are in the House at present may not have been present when I had the opportunity of addressing the House before. May I say in one sentence that the burden of my criticism of this Bill was that the wording was so broad and indefinite as to contain considerable dangers. The noble and learned Lord on the Woolsack, when he was good enough to reply to me, said he thought that I had, in one respect at any rate, misconstrued the meaning of the Bill The Bill provides that the limitations imposed by Section 4 of the Government of Ireland Act 1920 shall not have the effect of precluding the Northern Ireland Parliament from including in laws for the peace, order and good government 662 of Northern Ireland of all provision relating to members of Her Majesty's forces. The noble and learned Lord said that he thought I had misinterpreted that as meaning that they are not precluded from any provision relating to members of Her Majesty's forces. Assuming the noble Lord is right about that, and if the meaning of the word "all" is that the Northern Ireland Parliament has the power at present, and indeed under this Bill, to make some provision relating to members of Her Majesty's forces and things done by them, surely it is essential that the area in which they are entitled to make provision should be specified in the Bill.
The history of legislation in this country is cluttered up with cases where legislation has been passed with one object in mind and later on has been put to an entirely different purpose. One can think of many examples of that. It is liable to occur particularly when legislation is carried through at speed and when there is no opportunity of considering all the implications and possibilities which are involved. Therefore in raising this point at this stage, raising the question as to whether these words are still far too wide and uncertain, I hope that I am raising a matter of principle and not arguing about semantics. I went on, when trying to illustrate the dangers in the wording of this Bill, to draw attention to the concluding words. It says in particular that the Stormont Government shall not be precluded from conferring on Her Majesty's forces:powers, authorities, privileges or immunities",and I pointed out that there was no limitation whatever upon the powers and the authority which could be conferred by the Stormont Government upon Her Majesty's forces. The noble and learned Lord—I do not suppose deliberately—did not attempt to address himself to that point, or try to explain the limitations, if any, involved in the powers and authority that can be conferred.
My Lords, I do not regard this as a disastrous Bill, as it has been described. I regard it as a Bill which is full of dangers, and I think the dangers arise from the fact that it has been drafted and carried through in such haste. What I am afraid of is that in time to come, maybe twelve months' time, maybe 663 longer, some Government—the Stormont Government, if it is still in existence—may take advantage of the wide phraseology of the Bill to put into effect things that were never contemplated in this House or in the other place during the course of these dicussions. That is the danger of this Bill as I see it. We have in the past had many illustrations of Bills that have been passed to cure some particular mischief and, later on, used for some entirely different purpose. One thinks for example, of the Public Order Act 1936. That was passed to deal with the Fascist dangers of that time, and one remembers the way in which it has been used since for entirely different purposes.
I ask the House to consider this as an important matter, and I would again say to the noble and learned Lord and to the Leader of the House that I hope that in the near future, within weeks, not within months, we shall have the opportunity of considering the implications of what we are doing to-night. I realise the necessity of our doing it in order that we can give immunity to our troops, but I hope that the Government will ponder upon these things and will give us the opportunity in the near future to consider whether this legislation cannot be put into some better and some safer form.
§ 1.52 a.m.
THE LORD CHANCELLOR
My Lords, I can of course reply to that only if the House is willing to bear with me and give me leave. I think the noble Lord did me an injustice when he said that I did not reply to the second part of his argument. At any rate, I endeavoured to do so. What I said was—and he has not quite appreciated the significance of it—that what the Bill does is negatively, first of all, to say that the Stormont Parliament is not precluded from legislating at all in relation to the forces. It does not give that Parliament any power to legislate to the forces in every respect, and I said (and I added these words which I think were stated and were intended to apply to the second part of what the noble Lord was saying and what he has just now repeated) that 664 it does not give to the Stormont Government powers to confer on Her Majesty's forces any powers or immunities which they cannot confer on a civilian. That is to say, that is the limitation. The Stormont Parliament cannot give orders to Her Majesty's forces. It cannot, for instance, say to Her Majesty's forces: "Disregard the orders of your commanding officer and do this, and you have the power to do it." It cannot tell Her Majesty's forces to stay in Northern Ireland or to go to a particular part of Northern Ireland. It can do what it can do to an ordinary private citizen, and say, "You have power to enter a house without a warrant under the legislation we have passed." It can do things of that kind, but it does not extend the power to the point of the mischief at which the Act of 1920 was genuinely designed to limit Stormont's powers. That is to say, it does not give the Stormont Parliament control of Her Majesty's forces at all or give it power to disregard the orders of the United Kingdom Government. That is the principal limitation, although I would think it is not the only one.
§ On Question, Bill read 3a, and passed.
§ LORD DENHAM
My Lords, I beg to move that this House do adjourn during pleasure until the Royal Assent.
§ House adjourned during pleasure.
§ House resumed.