§ 4.2 p.m.
THE LORD CHANCELLOR (LORD HAILSITAM OF SAINT MARYLEBONE)
My Lords, with your Lordships' permission I beg leave to repeat a Statement which my right honourable friend the Home Secretary will have made in another place. The Statement is as follows:
"When the Army were sent to Northern Ireland in support of the Civil Power in 1969 it was assumed that they would operate under the powers conferred on them by Regulations made under the Civil Authorities (Special Powers) Act (Northern Ireland). This assumption was challenged in a habeas corpus application last summer in our own High Court when the view held by the Government as to the validity of these powers was upheld by Mr. Justice Ackner.
"This morning the Northern Ireland High Court has delivered a judgment which declared, in effect, that these Regulations are ultra vires in so far as they confer powers on members of the Armed Forces.
"The particular Regulation challenged in the case before the Northern Ireland High Court is one which empowers a commissioned officer to call on an assembly of persons to disperse. But it appears that the Court's judgment would equally affect other Regulations, including, for example, the power to stop and search people and vehicles suspected of carrying firearms or explosives.
"It is clearly a matter of great urgency to ensure that the Army have all the powers they need and which succeeding Governments have recognised to be necessary in order to deal with the terrorist campaign. It is also necessary to ensure that members of the Armed Forces would not be liable to any legal proceedings based on this technical point in respect of the exercise of these powers since 1969. There is a right of appeal from the judgment 536 of the Northern Ireland High Court to the House of Lords but it would inevitably take some time before such an appeal could be heard. My right honourable and learned friend the Attorney General will therefore later to-day introduce a short Bill which the House will be invited to proceed to consider through all its stages forthwith. The sole effect of the Bill will be to declare that the law so far as the powers of the Armed Forces are concerned is and always has been what it had hitherto been believed to be."
My Lords, that is the conclusion of the Statement. Perhaps I may be allowed to add that, quite obviously, what has been read will involve an alteration in the business of your Lordships' House later this evening. What I have done is to repeat the Home Secretary's Statement, but there will inevitably be a Business Statement from the Front Bench as well.
§ LORD BESWICK
My Lords, we are grateful to the noble and learned Lord the Lord Chancellor for repeating that Statement. It discloses what I suppose we would all say, without exaggeration, is an unsatisfactory position. I imagine that we shall also say that there can be but one answer from this House: that we will do what we can to set the position right; in other words, to put the law without any doubt in the position in which we thought it was when we passed the Emergency Powers legislation in 1969.
However, there is one point about which I should like to ask the noble and learned Lord the Lord Chancellor. What will be the position of Mr. Hume if this legislation passes? Can the noble and learned Lord give us any assurance that there can be no question of using this legislation retrospectively to overturn the successful appeal which Mr. Hume has made in the Northern Ireland Court? Can the noble and learned Lord also tell us what will he the position of others who have possibly been convicted, or certainly face a charge, but have not made the appeal which Mr. Hume has successfully made?
§ LORD WADE
My Lords, I should like to join in thanking the noble and learned Lord the Lord Chancellor for making this very serious Statement. Whatever may be one's views about the policy of 537 the Government, or about the Regulations that were passed in 1969, it seems absolutely clear that the Army have been carrying out duties imposed on them, and carrying them out in very difficult circumstances, and it is absolutely essential that the Army should be indemnified; and that as speedily as possible. I hope, and I think we all hope, that whatever is necessary will be done to-day. The Statement repeated by the noble and learned Lord the Lord Chancellor referred to a right of appeal to the House of Lords. Do I understand that leave to appeal has been granted, and that in due course there will be an appeal?
THE LORD CHANCELLOR
My Lords, perhaps it would be convenient if I dealt at once with these two responses to the Statement; and I would thank both noble Lords for the responsible and helpful way in which this difficult Statement has been received by them. If I may correct a small point in the speech of the noble Lord, Lord Beswick, the position is this. The Government of Ireland Act 1920 (I am summarising rather shortly, and I hope I am not guilty of inaccuracy) gave plenary powers of legislation to Stormont, with certain exceptions. One of those exceptions—and I am not quoting now, and therefore will not quote exactly accurately—was to legislate in any matter affecting the Armed Forces.
It had been believed when the last Government were in power, and it was believed by us, and was so held by Mr. Justice Ackner, that this did not affect powers conferred on the Armed Forces under Regulations pursuant to the Special Powers Act 1922 (which is a Stormont Act and not a Westminster Act), on the ground that it was not, to use a compendious phrase, a military matter; the Regulations were simply giving to the Armed Forces powers already possessed by people like police constables or higher officers of the Ulster Constabulary. What has happened, so I understand (although I have not had the advantage of reading the text of the judgment), is that the powers conferred under the Regulations. some of which go back as far as 1966, and some of which are as recent as 1970, were not intra vires the Government of Ireland Act because they were Regulations purporting to confer powers on the Armed Forces of the Crown—either all 538 the Armed Forces of the Crown or on commissioned officers, as in the identical Regulation. It is not anything that we have done in this Parliament which is ultra vires or has been ruled against. It is the powers under which the Armed Forces have been operating, under both Governments, since 1969, by virtue of Stormont regulations.
Of course, my Lords, there can be no question at all that the Armed Forces possess the general Common Law powers which they possess in any part of the United Kingdom, or any powers which we confer on them. But the assumption had been that the Stormont Government, having general and plenary powers of legislation, could, through delegated legislation under the Special Powers Act, confer on the Armed Forces powers like those specified in the Statement, such as powers to stop vehicles, to arrest, to search for arms and explosives and so forth. I hope I have made that plain, because it could have been inferred from what the noble Lord, Lord Beswick, said that it was something which we had done in this House that was ultra vires.
The noble Lord, Lord Beswick, raised the question of Hume, and this point was also raised, in another form, by the noble Lord, Lord Wade. The position is that the decision of the Northern Ireland High Court was on an appeal by Hume. There can be no question, of course, of reinstating the conviction against which he successfully appealed this morning. There can be no question of that. It is true, as the noble Lord, Lord Wade, indicated, that counsel for the authorities in Northern Ireland, the Northern Irish Counsel for the Crown, asked for, and obtained, leave to appeal to the House of Lords; but if the new Bill is passed the Crown's appeal will not be proceeded with and therefore the conviction will remain quashed. In my belief, it will not, of course (although we can go into this later today when we discuss the Bill) render invalid anything which has happened, other than the convictions which have been successfully appealed against, because when the text of the Bill is seen it will be seen to be a declaratory Bill declaring what the Government believe to be the true meaning—I am not casting any aspersions on the validity of the judgment—in the sense of the intended 539 meaning of the Act from the first. The Bill will not render invalid any other thing which has been done. On the contrary, it will render it valid if the effect of the Northern Irish judgment is otherwise to have rendered it invalid. But so far as regards the convictions which have been quashed, they will remain quashed and I am sure that the House will agree with that. I am sorry to have taken so long over that explanation.
§ LORD BESWICK
My Lords, I am much obliged to the noble and learned Lord. I am afraid that I did not quite catch whether the word "conviction" was in the singular or in the plural. Are we referring only to the conviction of Mr. Hume or to others in similar positions?
THE LORD CHANCELLOR
My Lords, what I am not quite clear about myself is whether the judgment which was delivered this morning affected more than Hume. The Notice of Motion which I have seen was a Notice of Motion in the name of three defendants. What I have said is that whether it is one conviction or more, the judgment this morning will not be impugned by way of an appeal, which means that any conviction or convictions, in either the singular or the plural, which may have been quashed this morning will remain quashed. That is the intention. But at the moment I am not quite clear, not having seen the judgment myself, whether in fact what was quashed was one conviction or more than one.
§ LORD BROCKWAY
My Lords, I do not think any of us will want to oppose a Bill which gives this right to the Army. As a Back-Bencher, I suppose that I must make my comments in the form of questions. Is the noble and learned Lord aware that all of us in this House have a horror of what the I.R.A. has done, and particularly of what happened yesterday? Is he also aware that many of us feel that the soldiers who are in the Army in Northern Ireland are the deepest sufferers from events that are occurring there? Is the noble and learned Lord further aware that it is very difficult to make any comment now upon the complicated Statement which has been made, but may I ask him this? If it is the intention of Her Majesty's Government to grant indemnity to members of the Army, will similar indemnity be given 540 to those who have been interned and detained, and whose internment and detention has not been held up in courts of law? If that assurance is not given, may I give notice that in the Committee stage of this Bill I shall move a manuscript Amendment to that effect?
THE LORD CHANCELLOR
My Lords, I am grateful for what the noble Lord, Lord Brockway, said to begin with, that he will not oppose the Bill. I never had any doubt that he would share the universal horror and indignation, particularly at what was done yesterday, and in general at acts of violence and senseless cruelty such as are committed by both branches of the I.R.A. As regards his question, the indemnity will apply only to those things which have been invalidated as a result of this morning's proceedings in the High Court in Northern Ireland. It will not apply to anything else. If, for any reason outside the ambit of the grounds of the decision this morning, something else has been done—for instance, in excess of power, or in excess of propriety under the general law—that will not be indemnified in respect of either the troops or anybody else. But anything which is done within the ambit of the power that was declared invalid this morning will be validated to the extent that the Bill will clothe with the authority of this House, of this Parliament, the things which always had been clothed under the authority of Stormont, which was believed to be sufficient at the time when the acts were done. It will not validate anything which was done in excess of that, and of course, as I have already said, it will not alter the convictions or the conviction which was quashed this morning.