§ 5.11 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords. I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.1411
§ House in Committee accordingly.
§ [The VISCOUNT GOSCHEN in the Chair]
§ Clause 1 [Punishment for murder]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ LORD BROCKWAY
I should just like to say, as I am critical of nearly every other clause in the Bill, that I very much welcome Clause 1.
§ Clause 1 agreed to.
§ Clause 2 [Mode of trial on indictment of scheduled offences]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ LORD BROCKWAY
I want to say quite a number of things on Clause 2, which I regard as thje essence of the Bill. This clause carries out recommendations of the Diplock Commission. Among the terms of reference of the Diplock Commission was that detention should be dealt with,otherwise than by internment by the Executive".Under this clause the Exxecutive is removed from being the authority, but in effect internment is retained. There is to be no decision by juries in the cases which are covered by Clause 2. I regard the jury system as a legal foundation for freedom and democracy, and perhaps I may quote from two noble Lords who I know have the great respect of this House in this matter. The first is the noble and learned Lord, Lord Denning, who in his Freedom Under the Law, says:The system"—that is, the jury system—;which has been built up by our forefathers over the last 1.000 years suits our people because it is the best guarantee of our freedoms. The fundamental safeguards have been established, not so much by lawyers as by the common people of England … These are the men who have bequeathed to us the heritage of freedom.The second quotation is from the noble and learned Lord, Lord Devlin, who wrote in his Trial by Jury:Each jury is a little parliament. The jury sense is that Parliamentary sense. I cannot see the one dying and the other surviving. The one object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will and the next to overthrow 1412 or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution. It is the lamp that shows that freedom lives.I think all your Lordships would oppose any measure that sought to end the jury system unless it was felt to be absolutely essential.
Two reasons have been put forward for ending the jury system in these cases in Northern Ireland. The first is that the juries themselves could not be relied on, because of their sectarian emotions, to give an unprejudiced decision. In Northern Ireland to-day the jury system is now in operation except in a few cases associated with emergency. On the whole, it has worked well and impartially. There is the historic case of Mallon and Talbert, two Catholics who were acquitted by an entirely Protestant jury because their confessions were alleged to have been obtained by torture. Jury liability in Northern Ireland is still on a property basis of £32 valuation, and most property owners are Protestants. They are therefore not likely to give decisions which would be favourable to the I.R.A. I should add that I believe there is now some discussion as to whether the juries should be broadened, but at the moment I think the position remains as I have stated it. Under this clause, trial without juries is extended both by the regulations which have preceded this Bill and by the Bill itself. Over 50 selected offences can be tried without a jury, without the possibility of bail or common law defences. I submit that experience of the character of the juries indicates that we need not go as far as this clause suggests in eliminating juries.
The second reason that has been urged for the ending of the operation of juries in Northern Ireland is that witnesses would decline to give evidence because of their fear, because of intimidation and because they might be threatened. I submit to your Lordships that this danger might be overcome in three ways. The first would be by the admission of evidence by affidavit; the second, by the concealment of identity of witnesses, if necessary; and the third, by some relaxation of the rule regarding hearsay evidence. I believe that if this were done no reason 1413 would remain for the total elimination of the jury system.
I have dealt with Clause 2(1), and I should now like to refer to subsection (4). Surely this is one of the most remarkable clauses that has ever been put into a Bill to come before this House. Subsection (4) says:Without prejudice to subsection (2) above, where the court trying a scheduled offence on indictment are not satisfied that the accused is guilty of that offence, but are satisfied that he is guilty of some other offence which is not a scheduled offence, but of which a jury could have found him guilty on a trial for the scheduled offence, the court may convict him of that other offence.I have never read such an extraordinary provision. The court is given the power to deal with scheduled offences. Under this clause, even if a man is found innocent of the scheduled offence he can be found guilty of another offence, if it is thought that a jury could have found him guilty. I am not a lawyer; but is there any lawyer, including the noble Lord, the Lord Privy Seal, who can possibly defend a clause of that character? Is there any precedent for it in the whole of British law, and what can be said in justification of it?
§ LORD KILBRACKEN
In rising to support my noble friend, I should like to apologise for not having been present in your Lordships' House during the Second Reading of the Bill. I had damaged myself while following the peaceful pursuit of pitching bales of hay in Ireland and was unable to face travelling some hundreds of miles to attend your Lordships' House.
I completely agree with what my noble friend Lord Brockway has said about subsection (4). It seems to me that if a man is charged with a scheduled offence, and if in the course of his trial in extraordinary circumstances it is found that some completely minor offence—for example, exceeding the speed limit—has been involved, then the court can find him guilty of that offence, instead of simply allowing him to go to an ordinary court and be tried in the ordinary way, where he would be able to defend himself.
The other point to which I should like to allude is that concerning the single judge. Your Lordships will remember that on Second Reading (and I may say that I read the OFFICIAL 1414 REPORT very carefully) my noble and learned friend Lord Gardiner expressed his clear preference for a judge and two legal assessors. The arguments he adduced were so convincing that there is no need for them to be repeated now. The principal reason given for insisting on a single judge was the shortage of appropriately qualified judges, barristers and solicitors in Northern Ireland. The Question was asked in another place by my right honourable friend Mr. Fitt why it might not be possible for the English Bar to be called upon. He said, it is true, that it would not be a very pleasant duty and might not be popular; but surely in a matter of such importance it would be justifiable to call upon the English Bar to make possible the position which was actually voted for at Committee stage in another place, although the decision then reached was reversed at a later stage by the Government. I should like to know why that solution could not be adopted by the Government.
§ 5.24 p.m.
§ LORD STOW HILL
May I just put a question to the noble and learned Lord? I am not sure that it comes to anything more than a question of drafting, but it is a question which arises in my mind on subsection (3). That subsection provides that where there is an indictment which contains a count relating to a scheduled offence and also another count relating to an offence which is not a scheduled offence, the offence which is not a scheduled offence shall be disregarded. I think the general object of that provision can be readily discerned, but I am not quite sure how it works. Supposing you have such an indictment, the judge is enjoined by this subsection to take no notice of the non-scheduled offence. What happens to it?—does it, as it were, lie on the table? It remains, after all, part of a count which is extant against the accused person. It has not been dealt with at the trial of the scheduled offence and it remains in being, so to speak. I suppose it is a charge which could at some time in some court be proceeded with against the accused person. That would have to be subject to the general principle that a man cannot be prosecuted twice on the same, or substantially the same, facts; and in probably 19 cases out of 20 that principle would apply so as to prevent any further 1415 prosecution of that accused person in relation to the non-scheduled offence.
Perhaps it is only a matter of drafting, but I wonder whether it might not be desirable to reconsider the language to see exactly what is intended. I would assume it is intended that even if the principle of no further prosection on the same facts is relied upon, the accused person, in a situation of this sort, probably should not have to think himself at risk of prosecution in some other court in relation to the non-scheduled offence. To my mind, at any rate—perhaps I am wrong —the effect of the language used is not quite clear. I feel sure that the noble and learned Lord would agree that it ought to be made clear beyond a peradventure what the position of the accused person in those circumstances is; and I simply raise the point on the Question, "That the clause stand part" in order that the Government may give further consideration to it if the noble and learned Lord feels there is some doubt. If he says that he will take it into account, I shall be completely satisfied.
§ 5.28 p.m.
§ THE LORD CHANCELLOR
If I may deal with the last point first, the only information I can give to the noble and learned Lord, Lord Stow Hill, at the moment is that it is not intended to proceed with the disregarded count at all. However, as he has raised it as a drafting point, I am sure he would not wish me to answer him off the cuff. I will see that, as a drafting point, it is brought to the attention of those who are more expert than I.
I really am astonished at the two speeches we heard before that of the noble Lord, Lord Stow Hill. Dealing first with that of the noble Lord, Lord Kilbracken, the last time (so far as I remember) he addressed the House on the subject of the administration of justice in Northern Ireland, he actually put to me, as something for which the Government ought to be responsible, a perverse acquittal by a Northern Irish jury of a Protestant for an offence against a Roman Catholic. I pointed out to him, though he did not seem to understand the point, that the Government cannot go behind an acquittal by the jury. He seemed to think that the Government ought to do something 1416 about it. Now, the Government are doing something about it, by the abolition of trial by jury in these circumstances and for the very short period for which this Bill will be in operation, and the noble Lord (incidentally I hope he has now recovered from his hay-toting experiences in Ireland) comes down to the House and complains about what we are proposing, though it would deal with the only thing with which he previously reproached us. The truth is, I fear, as far as the noble Lord is concerned, that—Whatever we say,Aunt Agatha tells us it isn't the way.I turn now to the speech of the noble Lord, Lord Brockway, and I found myself even more astonished by what he said. Of course, I endorse every word that fell from the noble and learned Lord, Lord Denning, and also from the other noble and learned Lord (whose name for the moment I forget) about the merits of trial by jury. We discussed this matter, of course, at great length on Second Reading. I was happy to know that the noble and learned Lord, my predecessor, speaking from the Front Bench and I think officially on behalf of his Party, expressly endorsed the conclusion to which we had come that trial by jury had in these circumstances broken down. The reason it had broken down was partly intimidation, and partly bias. It is not fair; it is morally unjustifiable—I say this to the noble Lord, Lord Brockway, who is not slow to refer in this House to moral problems—to take 12 men from their homes and businesses, where their families are at risk and are vulnerable, where every one of them is known, and where every one of them can have their businesses and homes burnt and their families shot by sectarian violence, and to say, "Now you are going to conduct a cool and impartial trial by jury for a terrorist offence." If anything is morally unjustifiable it is the implication of what the noble Lord, Lord Brockway, has said.
Let me support what I have said with a few figures. Take, for instance, the spring assizes which have just taken place, in May and June, in Northern Ireland. In Londonderry City there were 17 cases all of I.R.A.-type violence; there were eight acquittals, five disagreements and four convictions in cases in 1417 which I believe the juries happened to be Protestants. Is that a satisfactory situation to arrive at? Take, for instance, the recent Armagh Assizes. There were six cases, no convictions, four acquittals and two disagreements. I could go on quoting this situation round several of the assizes and county courts. The only other matter I need mention concerns the report which I have received on the Antrim Assizes—so far that is three out of the Six Counties. I would be prepared to quote from the report, but I seem to have mislaid it in the heap of papers that I have before me. But the gist of it is this: if you have a Protestant jury it will not convict a Protestant if you have a Catholic jury it would not convict a Catholic; if you have a mixed jury it will disagree and there will be no result at all. What is the good of talking about the noble and learned Lord, Lord Denning, and whoever else it was, and the merits of trial by jury, when you have reached this kind of situation in Northern Ireland? What is the justice of it? What is the morality of it? People are being killed. These are trials for murder, for bombing, for violence, which nobody deplores more than the two noble Lords who have spoken, I suppose. You cannot get a conviction in the Six Counties of Northern Ireland—or in many of them —under the jury system as it is working now. The noble Lord, Lord Kilbracken, was one of the people who pointed that out to me about a year ago.
The fact is that the report went on to say: why is it those situations obtain? The situation obtains because some sectarian juries, members of the two communities, are intimated; they are afraid —I am quoting the report now, of reprisals; others are afraid of being reproached by members of their own community for being traitors or, as they are called in some Protestant circles, Lundies. This is the situation which the noble Lords are asking us to perpetuate. When one comes to look at the remedies proposed, where do we get to? The noble Lord, Lord Brockway, suggested that a trial for murder on sectarian grounds should be tried on affidavit evidence. Well, his little finger is thicker than my thigh! If I was a defendant on a trial for murder or for some violent crime, and I had had to choose between 1418 being tried by a jury on affidavit evidence, not seeing the witness, not having him cross-examined, not even having him appear before the court, and, on the other hand, having a trial where the witness is cross-examined before an impartial judge, whose impartiality is beyond reproach, I know which I should choose. Lord Brockway's suggestion is far more radical and destructive of civil liberty than anything in this Bill.
The other point was that the identity of the witnesses should not be disclosed. But how can that be possible in a community where the nature of the evidence will almost always enable the identity of the witnesses to be discerned, where everybody knows everybody else in a public court which, as I must tell the Committee, is often packed with "bully-boys" for the express purpose of intimidating the witness? But the noble Lord, Lord Brockway, in order to preserve trial by jury, would have the witness absent and his identity not disclosed. Has the Committee ever heard of a more preposterous suggestion? Has the Committee ever heard of anything more destructive of civil liberty than that? What we are suggesting is a trial that would stand up before the European Convention on Human Rights, a trial of a nature which would be reproduced in other countries of civilised Western Europe. What the noble Lord, Lord Brockway, suggests as an alternative is a breach of Article 6 of the European Convention on Human Rights. He gets up in this House and says he has never heard of anything so dreadful as Clause 2. I ask the House to pass Clause 2, and to do so with a certain sense of indignation with what the noble Lords have said.
§ LORD KILBRACKEN
I want to be as charitable as I can, and I can only suppose that the noble and learned Lord did not hear what I said. I am sure that must have been my fault; I did not express myself sufficiently clearly. He is right in saying that a year ago I pointed out to him the danger of the jury system in the Six Counties. I quoted the case of a Protestant (he happened to be a Protestant) who was clearly guilty of having arms and ammunition on his premises, but had been acquitted. And I stand by that. The Committee will know that in 1419 my remarks to-day I said nothing at any time that was critical of the Government's proposal to abolish the jury system—absolutely nothing at all.
§ THE LORD CHANCELLOR
The noble Lord's memory is singularly short. He began his speech by endorsing every word that the noble Lord, Lord Brockway, had said.
§ LORD KILBRACKEN
With respect, I said that I endorsed every word that the noble Lord, Lord Brockway, had said on subsection (4). What he was saying on subsection (4) was that when a man had been charged with two offences, only one of which was a scheduled offence, and was found not guilty of that, but that if a jury could have found him guilty of the nonscheduled offence, he could then be found guilty of that offence, that this should appear before a jury. There is no reason why a non-scheduled offence should not be tried by a jury. All nonscheduled offences are tried by a jury. Just because on that occasion the offence happened to have been coupled with a scheduled offence was no reason why it should appear before the special court. The noble and learned Lord has done me a wrong.
§ THE LORD CHANCELLOR
If I have done the noble Lord a wrong, I am naturally sorry. All I can say is that he misled me completely by his speech. I do not suppose there were many other Members of the Committee who were not misled. Perhaps I ought to dispose of what the noble Lord, Lord Brockway, said about subsection (4). The noble Lord, Lord Brockway, modestly disclaimed being a lawyer, and I suppose that is right. The fact is that there are certain alternative verdicts which can be found on the evidence on a count of an indictment. In English law they are probably wider than in Northern Irish law, but there are certainly some which can be found. Obviously the draftsman has rightly allowed for the case where an alternative verdict could be found which was not that of a scheduled offence on a count which charged a scheduled offence. One noble Lord—it was the noble and learned Lord, Lord Stow Hill, and therefore this is not a criticism of 1420 the two noble Lords—was very ready to point out the injustice which would be created under, I think it is, subsection (2) if the man was put in peril on two separate occasions; and this is to prevent that.
§ Clause 2 agreed to.
§ Clause 3 [Limitation of power to grant bail in case of scheduled offences]:
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ 5.41 p.m.
§ LORD BROCKWAY
I want to raise two points on Clause 3. The first is on subsection (1) which says that a person,shall not be admitted to bail except by a judge of the High Court …I want to ask what is the justification of that. Why should not a person be admitted to bail by a decision of magistrates or of judges in a lower court? The second point I want to raise is on subsection (5), and this I do very seriously indeed. It applies this clause to,persons who have attained the age of 15".There are similar references in Clauses 8 and 9 and in the Schedule, but perhaps I may deal with the subject on this subsection. Under this subsection a child of 14 may be sent to a detention centre for six months; and there are to be special detention centres for such children. Previously the term was only one month and, such cases were dealt with, I believe, by juvenile courts. Why should not juvenile courts still have this power over children of this kind of age?
§ THE LORD CHANCELLOR
The short answers are these. I explained very fully the bail provisions of Clause 3 in my speech on Second Reading. But, first of all, all these offences are offences for which people in England, if they were tried for a comparable offence, would certainly not be given bail in my opinion and I explained my reasons for saying so. They are commonly given bail in Northern Ireland and they are being given bail by magistrates. The reason why magistrates are giving them bail is that they are frightened of being murdered or that their wives and children will be murdered. The noble Lord will not have forgotten (I reminded the House on Second Reading) the dreadful case of Mr. Stainton, a brave Roman Catholic 1421 magistrate, who was I think dealing with a case and who was shot and died —murdered—because of the way in which he stood up to it. His daughter, the Committee will recall, wrote that absolutely heartbreaking poem addressed to the Deity begging for her father to be spared, which brought tears to the eyes of anyone who saw it. That is why we are leaving it to the High Court judge, who, by virtue of his high office, is perhaps more easily protected and, because such judges are relatively few in number, can be provided with reasonable security. We are protecting him so far as we can by saying that his duty is laid down by the Statute: the duty to do that which would be done in any ordinary English case of the same gravity. His duty is laid down by the Statute and therefore, whatever the pressure or threats which may be brought against him, he will have to make the same order. It is directly the danger of intimidation and the desire to protect the magistracy and the Bench that have led us to make this provision.
As regards the second point, I do not claim to be as great an expert on the answer to the question as my noble friend Lord Belstead would be, but, broadly speaking, one must face the fact that in the situation which obtains in the streets of the cities of Northern Ireland children of relatively tender years are, unfortunately, being used by the terrorists to perform crimes which one would have hoped would be confined to the wickeder members of us adults, and they have to be treated as very dangerous people. The provision to which the noble Lord has drawn our attention is a provision by which they may be admitted to bail notwithstanding the general provisions of the clause. The other provision at which we have not yet arrived but to which the noble Lord referred is of course a provision for their detention where they are not admitted to bail.
§ LORD SHEPHERD
May I ask just one question? I can fully understand and sympathise with the case that the noble and learned Lord has put, but here we have the age of 14. One sees on television and has read reports of youngsters a good deal younger than 14 who also are involved in violent matters. If this is so, we still leave the magistrates 1422 in the same position they are in now. Why was the age set at 14 and perhaps not made lower for the protection of the magistrates, for whom the noble and learned Lord has made a case?
§ THE LORD CHANCELLOR
The noble Lord is logically quite right. I do not know why 14 was chosen as the age, although it is an age quite commonly referred to in criminal matters. I would think it is a question of judgment and degree. It is perfectly true that even younger children have been guilty of explosives offences, and others. But I expect that all of us feel about bail (I do not know what they feel about it over there, but I know what I feel about it here) that, wherever possible, the presumption ought to be in favour of bail. Here we have a clause in which, for reasons I have explained, we are forbidding magistrates to exercise a discretion, taking away power from them and confining it to a High Court judge. I suppose it was thought that in the case of a child under 14 there ought to be a discretion to admit to bail even where a terrorist offence was committed. Obviously, to that extent we have been illogical; to that extent the magistracy will be exposed to threats of reprisals. I should like to think we have been right about this. I do not know exactly why it was done, but I think I can imagine and that I have probably given the correct explanation.
§ LORD SHEPHERD
I am grateful to the noble and learned Lord, and I certainly would not want to appear to be putting children in a different situation from their present one. My only fear in this matter is that, by putting it in this way, we may encourage those who require some of these children to do this to look to children who are younger than 14 merely because they are in a special position. I wonder whether the noble and learned Lord would look at this point. I am not now advocating that the age should be lower, but I should not like to think that, because we have set this age, we shall find younger children being required to undertake some pretty ghastly and dreadful acts.
§ THE LORD CHANCELLOR
I will certainly draw attention to what the noble Lord has said. Those concerned are, I 1423 am afraid, quite wicked enough to what he has in mind.
§ Clause 3 agreed to.
§ Clause 4 agreed to.
§ Clause 5 [Admissibility of written statements in proceedings relating to scheduled ofiences]:
§ 5.50 p.m.
LORD GARDINER moved Amendment No. 1:
Page 4, line 23, leave out ("or mental").
§ The noble and learned Lord said: I beg to move Amendment No. 1. The point is a short one. Clause 5 provides for the very kind of circumstances of which the noble and learned Lord the Lord Chancellor spoke so eloquently just now; namely, that a case may be tried on a written statement, which is not even on oath, and the man is not there at all and so cannot be cross-examined. Nevertheless, I quite agree with the clause in general in the circumstances of Northern Ireland: that the man is outside Northern Ireland and it is not reasonably practicable to secure his attendance, or that all reasonable steps have been taken to find him but he cannot be found.
§ The third case is where the maker of the statement is dead or is unfit, by reason of his bodily or mental condition, to attend as a witness. This Amendment relates only to his mental condition. I quite agree that if, for example, the accused, by attacking the witness, has caused a mental breakdown he should not be able to dispose of him altogether as a witness in that way. This Amendment is solely directed to the question—as I put it rather colloquially during the Second Reading debate: if the man is "bats" when he made the statement, how can it possibly be right that the statement should in any circumstances be admissible? The answer given by the Government to that was that it was very unlikely indeed to happen and that no doubt in those circumstances nobody would want to use the statement. Of course it is possible that the prosecution may know the man is "bats" and the accused may not. It is a short point, and I know that there is a precedent for it in the Criminal Justice Act 1965; but I still think it ought to exclude a case in 1424 which the mental condition was in existence at the time when the man made the statement. Needless to say, the more the Government say that this will never happen, the more I shall press the Amendment because of the obvious submission that there can be no possible objection to acceptance of the Amendment. I beg to move.
§ THE LORD CHANCELLOR
I take it that it probably would be convenient to deal with this and the succeeding Amendment together. They are related, are they not?
§ THE LORD CHANCELLOR
I have misunderstood them then. At any rate I can deal with this quite simply by saying—
§ LORD GARDINER
I am sorry, but the noble and learned Lord is quite right. I was in effect speaking to both Amendments.
§ THE LORD CHANCELLOR
I thought the noble and learned Lord was, but as he is such a very distinguished person I thought I must be wrong when he corrected me.
Before I disclose my hand on this matter, I should like to share with the Committee one or two of my own difficulties about it. To my mind it is not quite so simple as to say that the thing is unlikely to happen; nor is it quite so simple as to say that there is a precedent for it. To begin with, of course, those who are mentally unstable habitually do give evidence in our courts. I slightly—I will not say reproach, but slightly dissent from the rather crude expression, "bats". There are all sorts of people who may be fit to give evidence but who are not quite "all there". It rather depends on the nature of their malady, and the matter about which they are giving evidence, as to whether they are quite "all there" and whether they ought to give evidence or not.
Of course a wise court, whether it is a judge or a jury (in this case it is a judge), will bear in mind anything they know or can observe about the mental condition of the witness if he appears in court, in deciding how much attention to pay to his statement. If I may say 1425 so, I think the strength of the noble and learned Lord's position is that in this case they will not be in a position to make that kind of judgment. That is the strength of it. The difficulty is this: that if a situation arises where the prosecution seek to put in a written statement of a man who is said to be suffering from a mental or nervous condition which enables him not to give evidence, some witness must be produced, either a lay person who says he has observed the man and that he is in a state of frustration and cannot come, or something like that, or a medical witness who says that he has observed the man and that he is suffering from this or that mental incapacity and cannot come. In the latter case, I very much doubt whether the medical witness would be able to say when the condition arose. In the former case there is a new witness who would be liable to as much pressure as the original testimony.
As a matter of fact, I suffered considerable qualms of conscience about whether I should accept this Amendment. In the end I consulted my right honourable friend and we both thought, on balance, that in the light of the noble and learned Lord's fears, and because we want to be as conciliatory as we can in this matter, we would accept this Amendment and its immediate successor, to which he has spoken. I beg the noble and learned Lord to believe that this kind of task is no pleasure. I have some doubts whether, in accepting the Amendment, we are doing right, and I recognise that one may regret it afterwards. It is a political decision rather than a legal one that we have taken, but I hope the noble and learned Lord will take it as a token of good faith.
§ On Question, Amendment agreed to.
Page 4, line 23, after ("witness") insert ("or is unfit to attend as a witness by reason of a mental condition which has arisen since he made the statement").—(Lord Gardiner.)
§ On Question, Amendment agreed to.
§ Clause 5, as amended, agreed to.1426
§ Clause 6 [Admissions by persons charged with scheduled oflences]:
§ 5.57 p.m.
LORD GARDINER moved Amendment No. 3:
Page 4, line 36, leave out from ("to") to ("in") in line 37 and insert ("severe and prolonged pressure whether physical or otherwise or to violence or the threat of violence whether to himself or to any other person or to any combination of such forms of treatment").
The noble and learned Lord said: I am grateful to the noble and learned Lord and his colleague for having accepted those Amendments, because, apart from anything else, it shows that this Committee stage is a real Committee stage of the Bill. Encouraged by this, I now move this second Amendment. It arises under Schedule 1, which provides in paragraph 36 that the Secretary of State who releases a man against whom a detention order has been made on conditions, may recall him. Paragraph 36(3) provides:
The Secretary of State may recall to detention a person released subject to conditions under sub-paragraph (2) above, and a person so recalled may be detained under the original detention order.
§ THE LORD CHANCELLOR
On a point of order. I am not sure that the noble and learned Lord is moving the right Amendment. I thought we were dealing with Amendment No. 3 and, if I am right, Amendment No. 3 is to page 4, line 36.
§ LORD STOW HILL
This matter was discussed very fully on the Second Reading stage of this Bill, and the noble and learned Lord, the Lord Chancellor, gave, if I may say so, a full and reasoned reply to the point that was raised on behalf of the Opposition and which is now repeated in the Amendment. I hope that noble Lords in all parts of the House will think that my noble and learned friend and I are serving the purposes of the Committee in inviting noble Lords to consider the matter again, because I should have submitted to your Lordships that it involves a matter of principle on which we should feel some anxiety.
1427 The relevant words in the Bill are to be found in the following context. In effect, a confession or a statement made by an accused person is to be admissible against him on the trial of a scheduled offence unless (I abbreviate rather, but I think I get the substance of it) it was obtained by his beingsubjected to torture or to inhuman or degrading treatment in order to induce him to make the statement.….I start, and I know my noble and learned friend starts, from the general position that we are in a wholly exceptional situation, that there is the risk of a breakdown of the administration of the criminal law in the circumstances at present obtaining and that that not only justifies this Committee but requires that this Committee should be ready to depart, as the noble and learned Lord, Lord Diplock, and his colleagues recommended, from a number of legal safeguards which over the years we have worked out in order to prevent the risk of innocent persons being convicted of crimes which they have not committed. I start from that position. I seek to serve the purpose of the Committee by asking your Lordships to form a judgment on this question. Have we in this particular instance gone a little too far in departing from those standards? I put that to the Committee because of what I submit is the extremely stringent and severe character of the wording used. The statement has to be admitted in effect unless it was obtained by torture or inhuman or degrading treatment.
I should have thought it is difficult in our vocabulary to find words of more extreme import than those words. I accept at once that the test has got to be something far more severe than that which we habitually apply in normal circumstances in our own courts in this country in the case of the trial of criminal offences. There is no question of the Judges' Rules or of warning here. But have we not gone too far in selecting this extreme form of expression? Unhappily, in this century, we have become used to the concept of human beings applying torture to each other and treating each other in a way which is inhuman and degrading, and wherever we sit in this House, or any other, we all abhor 1428 that sort of thing and thoroughly repudiate it for any purpose whatsoever.
What the clause in effect says is this. If you have a person before you—"you" being an interrogating police officer—and there is a question of that person being put on trial for a desperate offence, in order to get a statement out of him it is your duty, if you are the interrogating police officer, to do anything to him to make him make that statement, subject to this, that you must not actually torture him and you must not actually submit him to degrading or inhuman treatment. I would submit to your Lordships that this is going a very long way. I take into account the fact that you are dealing with people who probably, certainly if they are guilty, are bloodthirsty, pitiless people; but I try to picture the situation of a decent, self-respecting police officer, perhaps with a family of his own, talking to his superior officer and asking him how he should conduct himself; and the answer is, "You have got to get a statement out of this man", or it might be a woman, "go to any lengths, but do not actually torture him. If you actually torture him the statement will not be admissible. Do not subject him to treatment which is inhuman or degrading". Those are words of uncertain import. I would have thought possibly in the ordinary connotation of the English language we might substitute for inhuman or degrading" the word "bestial". It is something we abhor and condemn.
It is said on the other side, and I accept at once that it is a weighty argument, that you are, after all, envisaging a situation in which a judge is trying this case without a jury being present. He is an experienced judge and clearly, if he heard that the individual charged had been subjected to treatment which fell short of torture but nevertheless was bestial, very unkind treatment (if I may use the expression unkind") he would probably say to himself "Well, I am not going to place much credence on this statement. If I thought it was voluntarily made I would rely on it, but when I hear the man", or woman as it may be, "was not actually tortured but nevertheless drastic measures were applied short of torture, I do not think it would be right for me to place much reliance on that statement". I accept that that is a cogent argument and probably in some 1429 cases would result, if I may respectfully say so to the Judicial Bench, in a correct assessment of it, and in the statement not being allowed to loom too large in the evidence against the accused person. I accept that. If I may respectfully say so to the noble and learned Lord who advanced that argument on Second Reading, I also accept that it is desirable, if we can, also to adhere to the language of the European Convention on Human Rights. This language which the noble and learned Lord, Lord Diplock, and his colleagues, have chosen does in fact come from the European Convention on Human Rights.
The argument advanced by the noble and learned Lord the Lord Chancellor also has force, if I may say so, but I would say to him possibly it is open to this answer. If we should, as I think we should, so far as we can, adhere to the language of the European Convention, perhaps it could be said that we ought also to do that in our own administration of the criminal law in this country. We do not do that. We think it right to apply far more careful tests in deciding whether or not we will admit a confession by an accused person. We have the Judges Rules and the caution, and we are very, very far away from the sort of provision made in the European Convention on Human Rights; I think rightly so. So I submit to the noble and learned Lord and to your Lordships' Committee that that argument only goes a certain way, although I accept it goes some way; and I accept at once on the case as a whole that this is a matter of balanced argument. There are considerations on both sides. When dealing with this wholly unprecedented situation it is difficult to draw the line in the right place. I accept that at once.
The object of my noble friend and myself in putting down this Amendment is to ask your Lordships to give further thought to this matter, in the concept that supposing it is the sense of your Lordships' Committee that really this language is too extreme, then one might try on Report to see whether we can find some more appropriate language. I know the noble and learned Lord, Lord Diplock, and his colleagues gave a great deal of thought to this and tried hard to find language which would seem to avoid the extreme character of the language 1430 chosen. It is very difficult to draft. My noble and learned friend and I made an attempt in the language we have put on the Marshalled List. I am quite sure that Parliamentary Counsel could probably shoot our attempt to bits, but I would have thought if we try to embody, as we have sought to do, the concept of prolonged duress, prolonged pressure of a severe character, whether with or without violence or with or without threats, that was coming rather near to what we have in mind. I myself, and I do not know whether your Lordships feel this also, find it very difficult to accept the notion that in a Statute emanating from Westminster we should say, in effect, "Do everything you like to this person, but do not torture him." We are, I would have thought, by implication saying, if we do so, that we are prepared to accept everything up to torture—that you must not go beyond torture or bestial treatment, as I have described it, or inhuman or degrading treatment. It goes against the grain with me; I do not like the idea of it and I hope your Lordships will not think I am being pernickety and saying as it were by implication emanating from Westminster that there they are prepared in any circumstances to tolerate such extreme conduct so long as it does not go beyond the limit into the realm of torture or bestial treatment.
Those are the arguments which I would seek to propound. As the clause stands, if the statement is obtained by torture or inhuman or degrading treatment it is not admissible. If it was obtained by something less than that it is admissible. The judge would then assess it. I agree that that is an argument of importance, but I respectfully submit that we ought to try and find something which imposes a test of severity which allows for the fact that the interrogating officers are dealing with a wholly abnormal situation, one where they have a guilty man before them—a very abnormal type of person. I do not suggest that this should apply when an innocent man is charged with the offence. These are abnormal people, who know no pity, and in that situation there is justification for allowing a good deal more latitude than we would in our own country in normal circumstances.
I hope I do not repeat myself when I say that there is a limit beyond which 1431 we should not even seem to countenance harsh treatment. I submit that this language transgresses that limit. For those reasons I respectfully move the Amendment on the Marshalled List, in the knowledge and I am sure with the agreement of my noble and learned friend, that probably that language is unsatisfactory, but perhaps your Lordships may think that it does ensconce an idea of the sort of direction in which we ought to go and which might be explored further for the purpose of perhaps finding more suitable language for Report. I beg to move.
§ 6.13 p.m.
§ LORD GARDINER
My Lords, I support this Amendment, more with a view to asking the Government to think again than supposing that this is the right Amendment, and having every sympathy with the Government because I think it is very difficult to draw the right line. The first question I would raise is this. As the Bill stands, what is the position as to the methods of interrogation described in the Compton Report?
The Compton Committee's conclusions were that their interrogation in depth procedures consisted of: (a) keeping the detainees' heads covered by a black hood except when being interrogated or in a room by themselves, and that this constituted physical ill-treatment; (b) submitting the detainees to continuous and monotonous noise of a volume calculated to isolate them from communication, and that this was a form of physical ill-treatment; (c) depriving the detainees of sleep during the early hours of the operation, and that this constituted physical ill-treatment; (d) depriving the detainees of food and water other than one round of bread and one pint of water at six hourly intervals and that this constituted physical ill-treatment for men who were being exhausted by other means at the same time; (e) making the detainees stand against a wall in a required posture (facing wall, legs apart, leaning with hands raised up against wall) except for periodical lowering of the arms to restore circulation; (f) detainees attempting to rest or sleep by propping their heads against a wall were prevented from doing so, and that if a detainee collapsed on the floor he was picked up by the armpits 1432 and placed against the wall to resume the required posture, and that the action taken to enforce this posture constituted physical ill-treatment. They found that 11 of the 12 men were at the wall for periods totalling 9, 9, 13, 14, 15, 20, 23, 29, 30, 40 and 43½ hours, and the man covered by the second Compton Report totalling 35 hours. Those hours were not, of course, continuous. They were standing continuously at the wall for periods of 6, 6, 7, 7, 7, 7, 7, 8, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 10, 10, 10, 11, 12, 13, 15 and 15 hours.
On the Privy Counsellors Committee we all declined to express any opinion as to whether those interrogation methods amounted to, "torture or inhuman or degrading treatment". There were two reasons for that: the first was that it was not necessary for us to do so because there was no disagreement whatever, either in the evidence we heard or among the Committee, that these methods were illegal by the law of England and illegal by the law of Northern Ireland and, for that matter, illegal by the law of Aden where, among other colonial situations, they had been used by an army interrogation team. That team, while never putting anything in writing, went over to Northern Ireland to train the Irish police in these methods, but as things were done which constituted torture and crime, it was obviously illegal and therefore quite unnecessary to express any opinion as to whether it constituted a breach of the European Convention on Human Rights, which uses the words "torture or inhuman or degrading treatment".
The second reason was that the Government of the Republic of Ireland brought a case, which I think is still extant, against the United Kingdom Government alleging that these methods were a breach of the European Convention. The United Kingdom case as I understand it was and is an issue, if the European Convention applied, that these methods did not constitute, "torture or inhuman or degrading treatment". If that is right, then these are the sort of things which will be able to be done if the clause stands as it is. They will of course remain illegal, and we have been told by the Government that these methods have been stopped. Nevertheless, I cannot help thinking that the Committee as 1433 a whole will probably agree that confessions ought not to be admissible if they are obtained either by the Compton methods or even by lesser methods, though I think it is very difficult to draw a line at the right point.
Of course the Bill purports simply to carry out the recommendations of the Diplock Committee. I do not know how far the noble and learned Lord, Lord Diplock, had studied the decisions of the European Court as to the meaning of the words, "torture or inhuman or degrading treatment", but it looks as though he thought that physical violence, or even the threat of physical violence, would constitute, "torture or inhuman or degrading treatment" because paragraph 91 of their Report reads:We do not think that with human lives and properties so gravely at risk any fair-minded man would consider that in the present emergency the police who are charged with the detection of crime should be discouraged from creating by means which do not involve physical violence, the threat of it or any other inhuman or degrading treatment….It is because of that phrase that I conclude that he must have thought that physical violence, or even the threat of it, would amount to, "torture or inhuman or degrading treatment". So if I may say so, I respectfully feel that this really requires further consideration. I have received—and it may be some of your Lordships have received—purported allegations of actions being conducted now at the Royal Ulster Constabulary Interrogation Centre at Ballykelly R.A.F. Barracks, mostly on young detainees of 17 to 23. I have no knowledge, of course, of whether any of them are justified or not.
I appreciate that it will be said that this is subject to the judge's discretion. This is the great difficulty, because the governing consideration must be this: that what has happened over the Judges' Rules in England shows that with the best police force in the world, which I believe to be ours—and I have no reason to think that the Royal Ulster Constabulary, for whom I have a high regard, have not an equally high standard—if the police use methods they ought not to use to get a confession and then find that the judge admits it, they go on doing it. I am not revealing any secret when I say that the Judges' Rules are in many cases not observed in 1434 England, and when evidence is given that they are not observed the judge, who has a discretion nevertheless to admit the evidence, tends to admit the evidence. The result is that the police go on doing it.
This, I think, must be the governing consideration, wherever you draw the line. It cannot be an answer simply to say, "Well, a judge could exclude it", because all experience tends to show that if the police use methods they ought not to use and they are not disciplined and the evidence is admitted, human nature being what it is they tend to go on doing it. Therefore, while I sympathise with the Government in feeling that this is a very difficult line to draw, I would support my noble friend Lord Stow Hill in saying that we ought to draw the line at a narrower point than the circumstances in which a confession can be admitted after it has been obtained by methods less Draconian than torture or inhuman or degrading treatment. If I am right in thinking that it is the Government's case that even the Compton methods do not amount to torture or inhuman or degrading conduct, then I think we are in a difficulty.
§ 6.22 p.m.
§ LORD KILBRACKEN
I strongly support the Amendment of my noble friend and my noble and learned friend who has just spoken. There are two points I should like to make, and the first is this. I assume it is the Government's case that the shameful catalogue of methods enumerated by my noble and learned friend to extract information from prisoners is not held by the Government to be torture or to be inhuman or degrading treatment. I may be wrong in that, but that is my understanding. If that is the case, why is it necessary to have this reference in the Bill at all as it stands at present? Can it be that the Government foresee the possibility of using even more terrible methods? Is there a plan to bring back the rack or the thumbscrew?
The second point I want to make is that my noble and learned friend Lord Gardiner found that these methods were illegal. He stated that as his opinion, and, as he said at Second Reading, that opinion has never been challenged. What action has been taken against those people who were responsible for that illegal 1435 act and those illegal actions? Has any action been taken, and if not why not? If such actions were illegal, do we have to provide in legislation that worse methods would make any evidence secured in that way inadmissible? It seems to me that the high standards of British justice, for which I have had such great respect, are falling to the most abysmal depths if we have to state in an Act of Parliament that evidence obtained by torture worse than that used at Long Kesh cannot be admitted.
§ THE LORD CHANCELLOR
The noble and learned Lord. Lord Stow Hill, and the noble and learned Lord who sits opposite me at the moment have put the case for their Amendment with their customary courtesy and sense of responsibility, and I hope to persuade them in the same mood that they are mistaken in what they are suggesting. In two points of fact I must correct them, and I should like to do so straight away. It may have been just a slip of the tongue, but it is certainly wrong when the noble and learned Lord, Lord Stow Hill, said that we were in effect, by the Bill as it stands, saying, "Do everything you like to this person but do not torture him". We are not saying that at all, and I will explain to him in a moment why. Equally the noble and learned Lord, Lord Gardiner, was mistaken—and I did not get his words precisely, so he will forgive me if I do not quote him exactly—in suggesting that it was any part of our case that the authorities in Northern Ireland ought to use the Compton methods, if I may use a shorthand phrase. I will again explain that. Indeed the very speech which the noble and learned Lord, Lord Gardiner, made exposes the fallacy of both statements, if I may say so.
I think I really must pass by with contempt the suggestion which fell from the noble Lord, Lord Kilbracken, that the British Government were thinking of introducing the rack. That is neither courteous nor responsible, and I can only repudiate it with such indignation as I feel the House would wish me to use.
If I may return to the two noble Lords who put their case in a reasonable way, I start by saying this. I was deeply grateful, if I may say so personally to him now—I do not think I have had the opportunity of saying it before—to the 1436 noble and learned Lord, Lord Gardiner, who was one of the Compton Commission, for the extreme sense of responsibility with which they characterised what they found had taken place. Their restrained and proper language rendered it much more easy for those of us who wished to stop that type of interrogation to accept his Minority Report rather than the Majority Report of the other two. They all, I thought, carried out their functions conscientiously and with great wisdom. If he will allow me to say so now, I know how deeply he feels about these things; it must have cost him a great deal to express his views in such cautious language, and I think it enabled those of us who wished to take that point of view to accept his Minority Report rather more easily than we might otherwise have done. So I think he can write it down as his good deed for the Session that he acted in that way.
The noble and learned Lord said to the Committee—and who am I to contradict him?—that such actions are illegal by Northern Irish law. I will not discuss English law because we are dealing with Northern Ireland. On the assumption that he is right and that it is both a tort and a crime to conduct methods of that kind, the answer is that we do not say to the police or the military, "You can do anything you like short of torture", because the fact is that in the opinion of the noble and learned Lord—and, as I say, I have not contradicted him—if they did that the Government would be liable to pay damages, they would be liable to pay damages personally as well as the Government, and they, though not the Government, would be liable to criminal prosecution. This can be brought under the law of Northern Ireland, as it can under the law of England, by any individual in the world who is living there and will take out a summons. That is the sanction which prevents that kind of thing and, quite rightly in my opinion, we have given an undertaking that those methods will not be used. I was happy to note that neither of the two noble Lords who spoke so responsibly suggested that we have departed in any way from a strict observance of the undertaking we gave when we accepted the noble and learned Lord's Minority Report.
1437 It follows therefore that it is not correct to say that we are tolerating, permitting, encouraging, conniving at or colluding with methods of which the House would not approve, and which the noble and learned Lord enumerated. I hope he takes that as common ground between us. We are not allowing this kind of thing, and if it came to the surface it would be open to prosecution, and open to an action for damages if the noble and learned Lord's view of Northern Irish law is correct.
What are we doing about it? This brings me back to the philosophy of the Bill. It is at this point that I begin to cross swords with the argument presented by the noble Lord, Lord Stow Hill. The philosophy of the Bill, which I sought to expound on Second Reading, is this. One of its prime objects is to get rid of imprisonment without trial. The Diplock Report described how we were to set about it. Lord Diplock said that the ordinary trials had broken down and that this was part of the reason why so many people had to be imprisoned without trial; and he said that we must make deviations from the ordinary rules of procedure and evidence.
He asked "What standard are we going to adopt for the special trials we hold for terrorist offences?" The standard he took was Article 6 of the Human Rights Convention, which contains the phrase about "torture and inhuman or degrading treatment", that appears in the present clause of the Bill under discussion. What he said in effect was, "We will set up trials which conform to the Human Rights Convention, although not with the highly laudable additional restrictions which in ordinary times are imposed on trials both in Northern Ireland and in England; and beyond that stage you must rely on an extra-judicial process." That is to say, a process at which the laws of evidence are suspended.
The effect of passing this Amendment, or of any Amendment which reduces the area within which a public trial can take place, is to increase the number of people who will be imprisoned without trial. Therefore I must point out to the noble and learned Lord—and I will come back to this in another context—that if he is really concerned, as I know he is, to prevent inhuman treatment, this is not 1438 the way to go about it, because the only effect of passing his Amendment would be to push it under the carpet so that it resulted in imprisonment without trial under the detention order, which is far less easy to control. I am quite sure that that is, in its way, a conclusive argument against it. The virtue of a trial under the Bill is that it is held in public. Every kind of allegation against the police, or against the military, can be made in public in that trial, irrespective of whether the evidence is ultimately admitted or ultimately rejected, because, as both noble Lords will know, whether or not it goes to admissibility it must be admitted when it goes to weight. Therefore the way in which malpractices can best be brought to light and repressed, as the Compton practices were repressed as a result of the noble and learned Lord's Minority Report, is precisely to ensure that as many trials as possible will be held in public and that the methods can be subjected to scrutiny by counsel.
I am afraid this is going to take a little time, but it is a serious matter. The noble and learned Lord appealed to me to give it further consideration, and I have given it no little additional consideration to what I gave it on Second Reading. I hope I may be forgiven here for what may be thought by both noble Lords to be a slight digression, because at this stage I owe it to the Committee to describe something that both noble Lords know: namely, what actually goes on in a trial by jury when a confession is sought to be adduced and its admissibility is challenged by the defence. What takes place is what is called in the profession "a trial within a trial". The jury is told to go out. All the evidence relating to the confession—almost always including the actual confession itself—is then adduced in court, but without the jury being present. The Press do not report it (though why they do not must be ascribed more to their sense of public responsibility than the law), but in fact the trial goes on without the jury.
The judge then makes up his mind about the facts. He asks himself, "Am I satisfied "—and the burden of proof is on the prosecution to prove the admissibility of the alleged confession, and not on the defence to establish that it was improperly obtained. If he is not, then 1439 the evidence is not admitted. The jury come back, and the trial then goes on without their ever knowing what it is. If, on the other hand, the evidence is admitted, then the trial goes on and the jury hear all the evidence again with a new cross-examination and all the facts relating to the alleged improper methods used, notwithstanding that the judge has expressed his own view of the facts, and then the jury make up their own mind about what weight, if any, they choose to attach to it.
Of course this is a lengthy process in a trial by jury, but it is a perfectly rational one. Now translate that into terms of judge alone, and I think the Committee will see that the opposite is the case. Suppose this trial takes place before a judge alone. The judge first of all has to hear all the evidence in the case relating to the confession, all the circumstances relating to the way in which it was obtained. He will not be able, because judges are human (at least, I have always thought so), to fail to make some kind of judgment about whether the confession is in fact a true statement of what happened or a false statement of what happened. Suppose he came to the conclusion that the evidence was improperly obtained I am using shorthand—he says, "I have got to exclude it". Suppose, however, that he believes it to be true; what sort of mental gymnastics can a judge alone really perform, believing that a true confession had been made but that he will not admit it in evidence? The trial thereafter becomes some kind of a farce, and only a greater one in a sense—although we have done our best in the Bill, as it stands, to give him a discretion to send it to another judge—if he excludes the evidence. If, on the other hand, he does not exclude it, he is still entitled to say, "I am not satisfied about the way in which this evidence was obtained, even though it was not obtained by torture. I therefore choose to disregard it."
I am sorry to take so long about this subject, but it is very important that this should be understood by lay people as well as by lawyers. This is not just an argument between lawyers; it is an argument about human liberty. I hope I have persuaded the Committee that all this talk about admissibility is perfectly real and rational when you are dealing with a 1440 jury, when a judge decides what they shall be allowed to hear, but it is basically unreal when a judge is sitting alone and decides what he will allow himself to listen to, and has to hear it all first before he can make up his mind.
I think that the noble and learned Lord, Lord Stow Hill, will at this point ask me—and he will be perfectly right—" Why have you excluded torture and degrading and inhuman treatment?" The answer to that is basically one of public decency. This is what the Diplock Commission said about it, and I agree with them. It is contained in paragraphs 88 and 89 of their Report and I think we should remind ourselves of it:The logic of this solution"—say they—is that the function of a court of law is to determine whether the accused is truly guilty of the offence with which he is charged. Its function is not to discipline the police force, over which it has no direct powers of control, by the indirect method of letting a guilty man go free to commit further crimes against public order and safety. In the case of a hardened terrorist this is a likely result of this method of marking the court's disapproval of the behaviour of the police.Nevertheless"—they go on to say, and this is where I agree with them—we think that logic ought to yield to the consideration that the reputation of courts of justice would be sullied if they countenanced convictions on evidence obtained by methods which flout universally accepted standards of behaviour. We consider therefore that although the current technical rules, practice and judicial discretions as to the admissibility of confession ought to be suspended for the duration of the emergency in respect of Scheduled Offences, they should be replaced by a simple legislative provision that:At this stage, I think I must point out that the Bill as drafted is a stage more favourable to the accused than the Dip-lock Commission reported, because although we have adhered to the strict wording of the European Convention—I 1441 have explained our reasons for doing that, and I hope they have commended themselves to the Committee—we have reversed the burden of proof. We have put it back on the prosecution to exclude inhuman or degrading treatment or torture, and not vice versa for the defence to establish it. This I think is right and, although I have forgotten the exact course of events in another place, I think it is true that we yielded to pressure from various critics at one stage or another in order to do it.
- (1) Any inculpatory admission made by the accused may be given in evidence unless it is proved on a balance of probabilities that it was obtained by subjecting the accused to torture or to inhuman or degrading treatment; and
- (2) The accused shall not be liable to be convicted on any inculpatory admission made by him and given in evidence if, after it has been given in evidence, it is similarly proved that it was obtained by subjecting him to torture or to inhuman or degrading treatment."
This brings me back to the view—I hope I have persuaded the Committee that I have not in any way passed over this Amendment lightly—which I ask the Committee to accept. The line we have drawn is the line of universally accepted human behaviour, which the European Convention has drawn. For very many reasons, including respect for the European Convention itself, I do not want to depart from that form of words. There are reasons of policy which I have tried to explain in my argument, but there is a different reason of policy and it is this. Both noble and learned Lords spoke rather airily, saying that the wisdom of the Parliamentary draftsman could perhaps find a better form of words than those in the Bill; but those in the Bill have been adopted by the European Community as the proper place to draw the line. I do not want to cast doubts upon either the humanity or the wisdom of the noble and learned Lords, but a great deal of thought was spent on selecting these words by the parties who drew up the Human Rights Convention, and I should hope to have persuaded the Committee that the policy of the Bill demands that we should hold as many trials as possible in public.
If we want to stop the practices which fall short of the Convention we must do it by the ordinary processes of law in serious cases, where what is done is illegal against either the civil or the criminal law—which can be done; or by disciplinary methods in cases where there is much less deviation from propriety. We should leave it to the judge to adopt a rational procedure in all cases which do not go outside the bounds of the Human Convention, and to decide whether he believes that the confession obtained was true or false, when he comes to make up his mind about whether a terrorist is proved 1442 to be guilty without reasonable doubt, and we should not ask him to indulge in intellectual contortions which are appropriate only when two tribunals, one of law and one of fact, are trying the case. I do not think I ought to express a view as to what is, and what is not, inhuman or degrading treatment. This is obviously a matter of degree related to the circumstances of a particular case. In the end, the courts will have to decide that question in this country, and if a case is brought in the European Court, then the European Court will have to decide it again, and I think it would be improper for somebody such as myself, holding a quasi-judicial position, to try to speculate as to what they might find. Opinions might differ about the Compton methods. I have already said what I have to say upon them and I do not propose to go beyond that. But with that explanation, I hope that the noble and learned Lord will not think me discourteous if I say that we do not accept this Amendment, although we respect his reasons for putting it forward.
§ LORD STOW HILL
I rise only to thank the noble and learned Lord very sincerely for his very full and carefully considered reply. Quite obviously, he has thought a great deal about this problem and it is a difficult one. I do not know whether it is for me, or for my noble and learned friend whose name appears first on the Amendment, to make a decision whether or not we ought to beg leave to withdraw the Amendment, but, speaking for myself, I think the right course is probably to ask the Chair to put the Question, although I would not ask the Committee to divide. But I should like to hear the voices in order to collect the general expression of view.
§ LORD STOW HILL
—and I should like to have the voices counted. If they are very obvious in one way I shall not ask the Committee to divide.
§ 6.48 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Clause 6 agreed to.
§ Clauses 7 to 9 agreed to.
§ Clause 10 [Arrest and detention of terrorists]:
§ 6.57 p.m.
§ On Question, Whether Clause 10 shall stand part of the Bill?
§ LORD BROCKWAY
On Clause 10, I wish to raise the question of the right of constables and members of the Armed Forces to arrest and search on suspicion. This issue is also raised in practically every clause from now until Clause 18, and, to avoid making a speech on each clause, perhaps I may deal with the whole problem now. If we look at Clause 10, we see that the first subsection reads:Any constable may arrest without warrant any person whom he suspects of being a terrorist.Subsection (2) says:For the purposes of arresting a person under this section a constable may enter and search any premises or other place where that person is or where the constable suspects him of being".I regard that power to arrest on such suspicions as being quite extreme, and beyond what we ought to accept in any Bill which comes before your Lordships'
§ Their Lordships divided: Contents, 4; Not-Contents, 53.1443
|Brockway, L. [Teller.]||Longford, E.||Wynne-Jones, L.|
|Kilbracken, L. [Teller.]|
|Aberdare, L.||Elton, L.||Rankeillour, L.|
|Abinger, L.||Falkland, V.||Redesdale, L.|
|Belstead, L.||Ferrers, E.||St. Aldwyn, E. [Teller.]|
|Berkeley, B.||Gowrie, E.||St. Just, L.|
|Brabazon of Tara, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sandford, L.|
|Brougham and Vaux, L.||Somers, L.|
|Carrington, L.||Hanworth, V.||Strathcona and Mount Royal, L.|
|Clwyd, L.||Hereford, L.Bp.|
|Coleraine, L.||Hood, V.||Stratheden and Campbell, L.|
|Colville of Culross, V.||Limerick, E.||Stuart of Findhorn, V.|
|Craigavon, V.||Lothian, M.||Sudeley, L.|
|Craigmyle, L.||Loudoun, C.||Tenby, V.|
|Crawshaw, L.||Lucas of Chilworth, L.||Terrington, L.|
|Daventry, V.||Mancroft, L.||Teviot, L.|
|Denham, L. [Teller.]||Milverton, L.||Tweedsmuir, L.|
|Dulverton, L.||Monck, V.||Tweedsmuir of Belhelvie, B.|
|Dundee, E.||Mountevans, L.||Waldegrave, E.|
|Eccles, V.||Mowbray and Stourton, L.||Young B.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ Committee. If I may be permitted to deal with it now (because it raises the same point), when we turn to Clause 11(1) we see that anyone can be arrested who is suspected of "being about to commit" an offence; and that Clause 12(1) extends this power to any member of Her Majesty's Forces. Then, subsection (2) of Clause 12 contains the extraordinary statement that such a person need not state the ground of arrest: he has only to state that he is a member of Her Majesty's Forces, and he can then arrest. One also sees that this applies not only to the right of arrest but also to the right of searching premises.
§ To revert to Clause 10, I draw attention to subsection (3). Under this subsection, if a suspected person is arrested in these circumstances he can be kept in detention for 72 hours before being brought before a court. This is to make the situation more severe than it was previously. Previously, the period during which he might be detained before being brought before a court was 48 hours. I hope that, on these grounds, the Committee will consider very carefully indeed whether it ought to endorse these denials of very elementary civil rights—the power to arrest and search on suspicion, and to arrest without even stating any grounds of arrest. What is the 1445 alternative? It is the practice, if someone is suspected, to ask that person to accompany one to a police station, where some examination may take place. But to suggest that any constable and any member of Her Majesty's Forces should have these extreme powers seems to me to be beyond the acceptance of any Parliament which stands by the right of civil liberties. I hope the Committee will give very careful consideration to these points before accepting these provisions in this clause.
§ THE LORD CHANCELLOR
I only want to say that obviously no one wants to extend or impose rights of arrest without warrant or on suspicion—although they exist under the ordinary law in certain cases—beyond what is necessary. In the conditions of Northern Ireland we are satisfied that it is necessary and so were the Diplock Commission. When the noble Lord speaks so glibly of human liberties, he might reflect that not to be bombed is a civil liberty, not to be killed is a civil liberty, not to be shot at your front door in front of your young child is a civil liberty, and in cases of turmoil that kind of civil liberty might be a little more important than expecting a police constable or a young soldier to go about with a set of law reports about him.
§ LORD BROCKWAY
The noble and learned Lord, the Lord Chancellor, knows very well that I take that view just as strongly as he does. What he is really doing is trying to justify a denial of elementary civil rights by an appeal to emotion, to rhetoric, which is not worthy of the legal mind which he should reflect as the Lord Privy Seal.
§ LORD BROCKWAY
As Lord Chancellor. It is quite typical that he should just rise with amusement to correct something which I was going to add in that kind of trivial way. It shows that the emotion which he has been reflecting in a rhetorical way from that Front Bench is just a superficial thing which has been made for the purpose of impressing members of this Committee.
§ THE LORD CHANCELLOR
May I say that if the noble Lord thinks that my emotion on this subject is superficial compared with his, he might reflect that my 1446 son has been there for some time as a soldier.
§ Clause 10 agreed to.
§ Clauses 11 to 16 agreed to.
§ Clause 17 [General powers of entry and interference with rights of property and with highways]:
§ On Question, Whether Clause 17 shall stand part of the Bill?
§ LORD BROCKWAY
I want to raise two points in Clause 17. In doing so, may I say that I do not want to suggest that the noble and learned Lord the Lord Chancellor was not feeling an emotion on these matters. I was suggesting that on the occasion when he was speaking just now he was emphasising it in a way for the purpose of rather suggesting that those of us who hold these views just as deeply as he does were not expressing them.
On Clause 17 I want first to raise the point in subsection (4), where there is a denial of the accepted rule in this country that anyone charged should be regarded as innocent until he is proved to have been guilty. This phrase is in subsection (4):… the proof of which lies on him …"—that is, the person charged. That is repeated in Clause 20. I want to ask what justification there is for denying the classic legal view in this country that a person is innocent until proved guilty.
§ THE LORD CHANCELLOR
That is not at all a rare provision in law. Where a person does something which is prima facie unlawful and desires to put foward a special excuse, it is quite common in Statute law to insist that if he has such an excuse he must put it forward because it is a matter distinctly within his own knowledge. It does not apply in common law but it is not at all particularly uncommon in Statute law.
§ Clause 17 agreed to.
§ Clause 18 agreed to.
§ Clause 19 [Proscribed organizations]:
§ On Question, Whether Clause 19 shall stand part of the Bill?
§ LORD KILBRACKEN
I want to draw your Lordships' attention to subsection (6) of this clause. I cannot believe that 1447 it is really the intention of the Government that this clause should go as far as any normal use of language makes it appear to go. I want to read out that part that seems most offensive to me. It states:The possession by a person of a document … relating or purporting to relate to the affairs of a proscribed organisation … shall be evidence of that person belonging to the organisation …How on earth can that possibly be justified? It happens that within the last few days I have addressed two letters to noble Lords relating to the affairs of the Irish Republican Army. One of these was addressed to my Leader, the noble Lord, Lord Shackleton, and the other to the noble and learned Lord the Lord Chancellor. I discussed certain aspects of the I.R.A. How can it possibly be maintained, if either of those noble Lords happened to visit Northern Ireland (and, fortunately, only there will this lamentable Bill be applicable) and if they had my letter, or my memos, in their pocket, that this would prove them to be members of the I.R.A.? It seems to me to be completely without justification.
What makes it more remarkable is that nothing is said about the author of the document which relates to the affairs of the proscribed organisations. The person who writes the letter is not covered by this subsection; only the person who receives it. If anybody writes a document which advocates policies of the proscribed organisation, and if that letter is found, it is not held to prove anything about the writer; it is held to prove something about the person who receives it. I could write letters to any number of people in Northern Ireland and if I had a grudge against them I could make sure that the security officers knew that they had the document in their possession; and they would be held to be guilty of being a member of that organisation. I hope that the noble and learned Lord, the Lord Chancellor can give me some explanation of why this extraordinary subsection occurs in the Bill.
§ LORD BROCKWAY
I hope very much that in a more quiet way than we —or shall I say I?—discussed previous clauses, very careful consideration may be given to this subsection. Honestly, I 1448 do not see how anyone could endorse subsection (6):The possession by a person of a document addressed to him as a member of a proscribed organisation …and then follow the words which were quoted by my noble friend…shall be evidence of that person belonging to the organisation at the time when he had the document in his possession.I imagine that it has been the experience of every Member of another place and many Members of this House to have received documents which have assumed that they are members of particular organisations. If they had received such a document and under the provisions of this clause were alleged to be members of an organisation, and if they had kept the document, I suppose were they in Northern Ireland rather than in this country—which makes no difference to the principle—that document would be required as evidence that they belonged to the organisation at the time they had the document in their possession. This is impossible, and I very much hope that the noble and learned Lord the Lord Chancellor will look at this subsection and seek to delete this—I will not say "unforgivable" subsection, but this subsection for which no possible argument can be advanced. To receive a letter in which someone has said that you are a member of an organisation and to have that letter in your possession, it may be quite momentarily, means it is evidence that you belong to the organisation. Surely that is quite impossible, and I hope that the noble and learned Lord the Lord Chancellor will recognise that.
§ LORD KILBRACKEN
In view of what my noble friend Lord Brockway has said, may I add that what makes the position far worse is that the document does not have to be addressed to the person as a member of the proscribed organisation. That is taken as evidence that he is a member of it. The subsection states:The possession by a person of a document addressed to him as a member of a proscribed organisation, or relating or purporting to relate to the affairs of a proscribed organization …".So if the letter is addressed to somebody and there is nothing in it about him being a member of a proscribed organisation—if it is addressed, for example, to the 1449 Lord Chancellor—but it relates, or purports to relate, to the affairs of the organisation it proves that he is a member.
§ THE LORD CHANCELLOR
Behind the observations of both noble Lords is the fact that they have confused evidence with proof. The judge who tries an offence under the provisions of this Bill has to be satisfied beyond reasonable doubt that a defendant is guilty. There is nothing in this Bill to deviate from that general burden of proof. What this subsection says is that the possession of certain documents could he evidence which, of course, the judge could take into account, and accept or reject as he liked and as to whether he has reasonable doubt at the end of the case. The noble Lord, Lord Kilbracken, said suppose I had gone to Northern Ireland. I have gone to Northern Ireland. Suppose I had a document in my possession which appeared to be of an incriminating kind, what then? The answer is that I should tell the court exactly how I got it and they would believe me, if I were telling the truth. One must, I think, have some sense of proportion about this and one ought to consider the kind of conditions we are fighting against in Northern Ireland. The subsection provides that if someone has an incriminating document in his possession and will not give an explanation of it, he could be convicted, and I think that most people would consider that to be plain commonsense.
§ Clause 19 agreed to.
§ Clause 20 agreed to.
§ Clause 21 [Failure to disperse when required to do so]:
§ On Question, Whether Clause 21 shall stand part of the Bill?
§ 7.16 p.m.
§ LORD BROCKWAY
The only point I want to raise on Clause 21 is the reference to organisations of three or more persons. Subsection (1) refers to "any assembly—and 'assembly' is a rather strange word—of three or more persons which may lead to a breach of the peace and which may be dispersed, and if someone thereafter joins or remains in the assembly he may be committed to imprisonment for a term not exceeding six months or to a fine not exceeding 1450 £400. I want to submit that the reference to "any assembly of three or more persons" makes this a little ridiculous. I am familiar with similar legislation covering many parts of the world, including Colonial Territories, and the lowest figure which I have ever seen before is five, which in itself is rather ridiculous. But here we have come to the point of referring to three.
§ THE LORD CHANCELLOR
The only thing I can say about that is that the noble Lord's studies, although they may have included Statutes of countries in various parts of the world, have not extended to the Common Law. Three is the number which can constitute a riot or unlawful assembly.
§ Clause 21 agreed to.
§ Clauses 22 to 26 agreed to.
§ Clause 27 [The Scheduled offences]:
§ On Question, Whether Clause 27 shall stand part of the Bill?
§ LORD BROCKWAY
I wish to draw attention to subsection (3) which states:The Secretary of State may by order amend that Schedule"—that is, the schedule of offences—(whether by adding an offence to, or removing an offence from, either Part of that Schedule, or otherwise).I wish to suggest to the Committee that that gives a power to the Secretary of State which is not acceptable to us.
§ THE LORD CHANCELLOR
If the noble Lord would look at Clause 29, he would see that these Orders are subject to Parliamentary control.
§ Clause 27 agreed to.
§ Clause 28 [Interpretation]:
§ 7.20 p.m.
§ On Question, Whether Clause 28 shall stand part of the Bill?
§ LORD KILBRACKEN
I should like vto draw the attention of your Lordships to the offence of terrorism. "Terrorism" is defined as meaning,the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.I wish to put it to the Committee that the definition of "terrorism" here is far too wide. It quite simply stated that it 1451 means, "the use of violence for political ends". It does not specify any degree of violence, nor does it define "violence". So far as I can understand it, if I become engaged in a political argument in a public house and my opponent in an excess of fury strikes me on the nose, he is guilty of terrorism and is a terrorist. I have given a rather frivolous example, but surely we cannot be expected to accept a definition which puts terrorism at such a low value.
§ THE LORD CHANCELLOR
I can only say that we have accepted the definition of "terrorism" broadly as it is set out in paragraph 3 of the Diplock Report, and I think it is reasonable. I do not know whether the noble Lord's blow on the nose which he proposes to deliver in a public house after a political argument—
§ THE LORD CHANCELLOR
Nobody would think of hitting the noble Lord. But his assailant might or might not be guilty of terrorism. It would be a question of whether he was using violence to a political end, or because he had lost his temper. But he would be tried in the magistrates' court for that triviality, and not before a recorder or a High Court Judge. He would be tried in a magistrates' court just as he would be for any other public house brawl.
§ LORD KILBRACKEN
It is all very well for the noble and learned Lord to say that, but if we had been having a political argument and we were differing on a political opinion and he had struck me for political ends because he thought that would further his argument, then there is no doubt that he would be guilty of terrorism: and if he was guilty of terrorism he would not be tried by the ordinary courts, because it is a scheduled offence.
§ THE LORD CHANCELLOR
The noble Lord is confusing himself, but he is not confusing me. There is no political end to be gained if you hit an opponent on the nose. You do it because you lose your temper, and that is a common assault. If you are trying to persuade him not to give evidence by hitting him on the nose, then you would certainly be 1452 guilty of terrorism: and so you should be.
§ Clause 28 agreed to.
§ Clause 29 [Orders and regulations]:
§ On Question, Whether Clause 29 shall stand part of the Bill?
§ LORD BROCKWAY
Subsection (3) of Clause 29 says that the Secretary of State may by reason of urgency make an order or regulation without the draft being approved by the two Houses of Parliament. I would suggest that if such an order or regulation is made it should be announced to both Houses of Parliament on the date it is made or immediately after, and that there should be the possibility of a debate on it in either House if it is announced in that way without previous approval of the Houses of Parliament. Subsection (4) says that acts done before approval shall be permitted. That again seems to me to be going rather far, and I should like to hear some justification of it.
§ THE LORD CHANCELLOR
There are occasions, of course, when matters in this unhappy Province are urgent. I know that the Secretary of State has had to make use of these powers under the previous law, and I do not think there is any evidence to show that he has abused them. Unfortunately, in moments of disorder these things are necessary. I take the noble Lord's point about there being a Parliamentary debate and will refer it to my right honourable friend. If the noble Lord wishes to raise it again, I will write to him, or we can deal with it on Report.
§ Clause 29 agreed to.
§ Clause 30 [Commencement, duration, expiry and revival of provisions of this Act]:
§ On Question, Whether Clause 30 shall stand part of the Bill?
§ LORD BROCKWAY
Under Clause 30 the Commissioners and the Appeal Tribunal are to be composed of judges, barristers and solicitors. I recognise that legal knowledge is necessary for their judgment as to whether laws have been departed from, but I suggest that there is a danger of too much authority without any qualification being placed in the hands of the legal profession. I am 1453 wondering whether Her Majesty's Government might not be ready, as in the case of other tribunals, for the legal representatives to be accompanied at least by advisers from trade union organisations, civil rights organisations, the churches or social workers, who could balance the representation only by the legal profession. Would the Government be prepared to consider such a proposal? There is a separate point on subsection (2) which limits the emergency to 12 months. I should like to see the limit of emergency to be less than 12 months. One does not know what is going to happen in Northern Ireland during these next 12 months. There are some hopes of an easier situation. Surely we must not wait 12 months before there can be some reconsideration of this law.
§ LORD KILBRACKEN
I should like to mention that there is a great deal of scepticism in Ireland about just how long this Bill, or the Act when it becomes an Act, will remain in force. It is impossible to forget in Ireland that the Emergency Powers Act, which this Bill supersedes, was also said at the time it became law to be going to be in force for, I believe, one year, and it was in force for about fifty years. So when we are told that this is a temporary measure that will be in force for 12 months, there are some people who think that that is perhaps a rather optimistic estimate.
§ THE LORD CHANCELLOR
I cannot find in Clause 30 the reference to the Commissioners' qualifications. I thought that they were in Schedule 1. But certainly it is true that they must belong to the legal profession: that is our intention. So far as the duration of the order is concerned, it is for one year as laid down unless prolonged by a Resolution of both Houses. It can be less if the Secretary of State provides by Order, which is again subject to Parliamentary control. I do not think we can better that.
§ THE LORD CHANCELLOR
It can only be more, as I said two sentences ago, if Parliament so approves by Resolution of both Houses. Whether the scepticism which is shared in Ireland is generally held I do not know. All I can 1454 say is that if terrorism stops, the Bill will be mercifully short-lived; if it does not stop it will not be short-lived.
§ THE LORD CHANCELLOR
I thought it must be. I do not find it easy to find my way about particular revisions always in the course of debate, and I wondered if I had missed something, or I should not have drawn attention to it.
§ Clause 30 agreed to.
§ Clause 31 agreed to.
§ Schedule 1 [Detention of terrorists]:
§ 7.30 p.m.
LORD GARDINER moved Amendment No. 4:
Page 25, line 11, at end insert ("but with a right to appeal within twenty-one days of his recall to the Tribunal referred to in Part III of this Schedule against his recall and, if he has not already appealed to the Tribunal against the detention order, with the same rights of appeal as if the detention order had been made on the date of his recall").
§ The noble and learned Lord said: As the Committee know, under this Schedule there is normally first an interim custody order; then there is an adjudication by a Commissioner, who may either order the release of the detainee or make a detention order, and if he makes a detention order there is then a right of appeal within 21 days to a tribunal. It is in these circumstances that paragraph 36 is as follows:
- "(1) The Secretary of State may direct the discharge at any time of a person detained under an interim custody order.
- (2) The Secretary of State may direct the release, subject to such conditions (if any) as he may specify, of a person detained under a detention order.
- (3) The Secretary of State may recall to detention a person released subject to conditions under sub-paragraph (2) above, and a person so recalled may be retained under the original detention order."
§ The object of this Amendment, which I do not for one moment suppose is properly drafted, is to achieve two things. The first is to give to the person who is released on conditions and is then recalled because somebody has informed the Secretary of State that he has broken a condition (it may be a condition to live 1455 in a particular town) in circumstances in which there are many people with scores to pay off against other people—though it is reported to the Secretary of State that a man has broken his condition, it does not necessarily mean that it is true —an opportunity at some time or other and in some way or other of proving that he did not break that condition. No way is provided by the Bill of doing that at all. I am not in the least contending that he should not be recalled before being given that opportunity—I should quite expect the recall first—but at some time after he has been recalled surely he should have some opportunity of proving that he should not have been recalled for breaking a condition, because he did not break a condition. When this point was raised in another place it was suggested there should be a right of appeal to a commissioner. That was said to be "infra dig" so far as the Secretary of State was concerned, he being superior to the commissioner. I have suggested, therefore, that there should be a right of appeal to a tribunal.
§ The second point is this. I have no doubt that ordinarily a man will not be released probably for quite a considerable time, but it occurred to me that the Secretary of State may think that a particular commissioner in a particular case was probably mistaken in making a detention order at all. The Secretary of State may say to himself, "I can quite safely release this chap at once, subject to conditions, or even without conditions." If the man is released in those circumstances, then he obviously will not appeal to the tribunal. Why should he? —he is free. But if later on he is recalled, for whatever reason, or if he is not released for more than 21 days, then he will have lost his right to appeal to the tribunal and will be in a much worse position than if he had never been released by the Secretary of State at all. Here again, I am suggesting that there should be some means of preserving his position if his time for appeal has expired by the time he has come back. No doubt the noble and learned Lord the Lord Chancellor has given attention to these two points.
§ THE LORD CHANCELLOR
I did consider this matter. Though I am of course in charge of this Bill—and I con- 1456 sidered this in that way—it is not a matter which falls within my particular expertise, and the reasons which put me in charge of this Bill do not really apply to this particular matter, so I hope the noble Lord will forgive me if to some extent I regurgitate some of the points I have been given. I made some inquiries about this. I can talk with more confidence about the question of principle, of which I should like to remind the Committee, though I touched on this to some extent in my reply on Second Reading.
The procedure, as your Lordships will be aware both from the previous debates and from the text of the Bill, is as follows. The Secretary of State makes a temporary order only if lie is personally satisfied that the person concerned is both a terrorist or concerned in terrorist activities and that his detention is necessary for the protection of the public. Both conditions have to be fulfilled before the Secretary of State is entitled to exercise his power. That power is purely temporary. The man goes before the commissioner, who will either confirm the Secretary of State's order—in which case the man stays inside because the commissioner is satisfied both that the man is a terrorist and that his detention is necessary for the protection of the public—or he does not confirm it, in which case the man goes completely free. In the former case—that is, where he stays inside—the man has a further right of appeal to the tribunal, which he must exercise, as the noble and learned Lord rightly says, within 21 days. At the end of a year his case must be reviewed—I am assuming that nothing else happens. It can be reviewed at any time by the Secretary of State by referring him to the commissioner again, and after a year it must be reviewed every six months.
This particular power of releasing on condition has never been used, so in some sense we are both of us jousting in the dark. However, I am informed that the Secretary of State would never consider its use in the event of the commissioner upholding his original decision within 21 days which are allowed for appeal. Thus, the particular situation envisaged by the noble and learned Lord would not arise. The man would only lose his right of appeal after he had stayed inside for 21 days without having 1457 been released on conditions. That particular problem would not arise. If the Secretary of State began to have qualms about whether the man ought to be kept inside at all he would ensure his release in one way or another unconditionally; that is, not being released on condition of good behaviour, or something like that. This is not a binding-over condition.
What the Secretary of State has in mind when he retains this power is that it could be that after a period of time a terrorist gives an undertaking, which is believed, that he wants to leave the Province altogether, perhaps because he has a job in another part of the United Kingdom or abroad, and in that case (assuming the Secretary of State was satisfied that this was so and that the man meant to abide by it) he might release the man on condition that he did whatever he said he was going to do, and then, if he came back, he would be put inside again. But, as I say, so far the actual power has not been used. Therefore, except for what I have told the Committee, we can only speculate as to what use might be made of it in the future. The noble Lord's Amendment assumes that use would be made of a quite different kind from that for which it is required, in such circumstances that a question of fact could arise as to whether or not a breach of condition had taken place.
What the noble and learned Lord seeks to do is to interpose the commissioner again in order to determine the question of fact as to whether the breach had taken place. This, I think, is the purpose of the Amendment he proposes. As to that, I would respectfully say to him that of course the Secretary of State can refer a disputed question of fact, and the case itself, to the commissioner again under the Bill, but the person who is released on condition is not to be treated as an innocent person for the purposes of the detention provisions. He is a person as to whom the Secretary of State has formed the opinion that he is a dangerous person whose detention is necessary for the protection of the public and that view has been ex hypothesi confirmed by the commissioner if he has appealed to the Appeals Commission, and if he has not 1458 appealed because he has not exercised his right of appeal to the Appeals Commission. In other instances of recall I do not think it is usual to submit the executive action of recall by the Secretary of State to a further quasi-judicial inquiry.
We are talking about highly hypothetical circumstances. I should have thought that on the whole if one takes the side of leaning towards private liberty, if one can, the Secretary of State might be deterred from releasing a man on conditions, if he were otherwise minded to do so, if those conditions were not so simple as the case I have given, of leaving the country or the Province altogether, by the knowledge that he would have to submit the whole case again to the tribunal. This is not an argument about which I can pretend to have expert knowledge of any kind. I put it forward to the noble and learned Lord as the reason why, on consideration, my right honourable friend does not feel able to accept this suggestion, rather than one of great legal principle upon which I can cross swords with my doughty opponents. Although the noble and learned Lord's argument has some weight —and there are considerations both ways —my right honourable friend did not feel it right to advise me to accept it on behalf of the Government.
§ LORD GARDINER
If the Secretary of State asserts, as I understand he positively does, that he would never release anybody within 21 days of a detention order being made, I obviously cannot ask the Committee to divide on this to-night, because I could not substantiate the second half of the Amendment. I am not at all happy about the first part. It is the difference between liberty and no liberty. If a man is brought back to prison for an alleged breach of condition there ought to be some way in which, through some form of inquiry, he could establish that he did not break the condition. I am not impressed by the bureaucratic answer, "If anybody is going to inquire as to whether I am right in finding that you have broken a condition I shall not release you at all". That is a typically bureaucratic attitude. I hope that the noble Lord will think about this first part again before the next stage of the Bill, when perhaps we might return to it. 1459 It would be very simple to provide a forum in which, through a Commissioner or in some way or other, a man had some right after being recalled at the Secretary of State's convenience to establish whether or not he had broken the condition. With those observations, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.43 p.m.
§ On Question, Whether Schedule 1 shall stand part of the Bill?
§ LORD BROCKWAY
Paragraph 38(c), on page 25 of the Bill reads:Any person who …(c) knowingly harbours any person required to be detained under an interim custody order or detention order, or gives him any assistance … shall be liable on conviction on indictment to imprisonment for a term not exceeding five years or to a fine, or both.I suggest to the Committee that that is a very extreme punishment for circumstances which may have very human considerations. One can easily see a situation where a mother harbours a son knowingly, knowing that he is a person required to be detained. But to say that, because of those human feelings, quite apart from political convictions, she should be liable to serve a term of imprisonment not exceeding five years or a fine in addition to that, seems to be going very far. I hope that Her Majesty's Government will give some consideration to changing those terms.
§ THE LORD CHANCELLOR
I am not sure that I wholly agree with the noble Lord. These are the maxima; they are not what would happen on indictment. For instance, if I steal a milk bottle I become liable, I think, to seven years' imprisonment. But this is not what happens. Probably I would be given a conditional discharge in view of my previous good character. This is true of all indictable offences. Knowingly harbouring a detainee was, I should have thought, a serious offence. If a widowed mother allowed her son who was on the run to sleep at her house at night she might well be given a conditional discharge or whatever the Northern Irish equivalent is. The Committee will probably take the view that it is a serious offence which can however be mitigated considerably in individual cases. I suppose the Northern Irish 1460 courts would not impose a custodial sentence if they did not think it was justified by the circumstances. I do not think it differs in principle from any other indictable offence.
§ LORD KILBRACKEN
I should like your Lordships to turn back to paragraph 16 of Schedule 1 which tells us:On the hearing of a reference a commissioner may—(a) receive oral, documentary or other evidence, notwithstanding that the evidence would be inadmissable in a court of law;I raised this matter on the occasion of the debate on the Detention of Terrorists Act, on which this Bill is in principle based, when it was debated some eight months ago. I asked the noble Lord, Lord Windlesham, who was then in charge of the Bill, if he could give an indication of the kind of evidence which would normally be inadmissible but which could be accepted on the hearing of a reference. The reply he gave was that this referred in general to hearsay evidence. He advised me to read very closely what the noble and learned Lord, Lord Diplock, had said earlier in that debate on that subject. I did so. In the noble and learned Lord's speech the only type of evidence that he seemed to foresee might be normally inadmissible but here acceptable would be hearsay evidence. I should like to ask the noble and learned Lord the Lord Chancellor whether he can confirm that that is his understanding, and that the effect of this paragraph is no more than to admit hearsay evidence. I can appreciate that in some circumstances in Northern Ireland it might be necessary to accept such evidence. If there is a case I would far prefer that it said so in the paragraph.
§ THE LORD CHANCELLOR
Obviously hearsay evidence is the principal case envisaged. It is also, I suppose, envisaged that where evidence of a witness is given in the absence of the accused under one of the other paragraphs, even though it would be otherwise admissible, it would not be admissible in a court of law. Equally, hitherto in many of the possession cases, where the obvious inference has been that a person is a terrorist but technical rules of evidence lead the court to direct an acquittal—to which it would not be led if this Bill is passed—such evidence would be admitted for the purposes of the detention proceedings. I 1461 do not think it would be fair at all to assume that tile only possible evidence is hearsay. A number of technical rules of evidence might be breached so as to render the evidence inadmissible before a jury or before the court under Part I of the Bill. But I would not be prepared to say at all that hearsay evidence was the only kind which is inadmissible. Far from it. But I would not be prepared to say, equally, what other kinds of inadmissible evidence—evidence inadmissible in a court of law—would be available to the tribunal. I think I should have to have much wider experience of the actual operation of these tribunals in the last 12 months before I could give a useful or categorical answer to that question.
§ LORD KILBRACKEN
I am grateful to the noble and learned Lord and regret that I did not give him notice that I was going to raise that point.
§ Schedule 1 agreed to.
§ Schedule 2 [Proscribed Organisations]:
§ 7.51 p.m.
LORD KILBRACKEN moved Amendment No. 5:
Page 26, line 15, leave out ("Sinn Fein").
§ The noble Lord said: I beg leave to move Amendment No. 5. There are three Amendments standing in my name, though they all relate to the list of proscribed organisations which form Schedule 2. I put them down as three separate Amendments because I suppose there is some small hope that the Government might accept one or other of them, and in that case I should be only too happy to move them separately. But it is my intention, if your Lordships agree, to speak in general terms about all three of them but then to move them separately.
I had better go back to Clause 19. Clause 19 of the Bill states that
any person who belongs or professes to belong to a proscribed organization … shall be liable on summary conviction to imprisonment for a term not exceeding six months",
et cetera. Schedule 2 sets out the proscribed organisations. Your Lordships will notice that there are six such organisations on the list. Perhaps I could begin by pointing out that two of them have been spelt wrongly. I think that if organisations are going to be
proscribed the facts may as well be put down correctly. The word "mBan" meaning "when", in "Cumann na mBan" does not have an apostrophe; nor does the word "hEireann" in the phrase "Fianna na hEireann". The correct ways of spelling them are "mBan" and "hEireann", without the apostrophes. Perhaps those could be deleted by some "usual channel" before the Bill becomes law.
§ Of the six organisations that are proscribed, your Lordships will see that five are what I would call Nationalist or republican organisations and one is what I would call an extreme loyalist organisation. In the first of my Amendments I propose to delete Sinn Fein from the five former ones, and in my second and third Amendments I propose to add the Ulster Defence Association and the Ulster Freedom Fighters to the loyalist organisations that I think ought to be proscribed. In proposing that Sinn Fein should be deleted from the list I do not want it to be imagined for the smallest moment that I am a supporter of Sinn Fein, let alone the Irish Republican Army, of which it is the political wing. But I want to draw your Lordships' attention to the fact that in the Republic of Ireland it has been accepted that Sinn Fein is a political organisation and its members are not members of the Irish Republican Army.
§ Of course in this list of proscribed organisations there is a strange situation in that it refers to the Irish Republican Army and Sinn Fein, whereas of course there are two Irish Republican Armies and two Sinn Feins which are completely different and diametrically opposed to one another. I suppose it must be taken that it refers to the Official and the Provisional I.R.A. and to the official and the Provisional Sinn Fein. But it seems strange that in each case two organisations which are totally different, diametrically opposed to one another, should be covered under the same name.
§ Then when we come to consider Sinn Fein, it is remarkable that the officials were able to circumvent the fact that their organisation is proscribed for the purpose of putting up members for election to the local government, by using the name of the Republican Clubs. Everyone knew that the Republican Clubs was official Sinn Fein, but nobody 1463 stopped their members from taking part in the elections. I suppose it would be equally possible for the Provisional Sinn Fein to call themselves by some other name and possibly—who knows?—the organisation might turn a blind eye again. But the main two points I want to make are these in recommending that Sinn Fein be as it were legalised. It is indeed accepted that Sinn Fein and the I.R.A. are two separate organisations; that the I.R.A. is devoted to means of violence and Sinn Fein are devoted to political means. But if Sinn Fein were—and by that of course I mean provisional Sinn Fein—to be removed from this list, surely it would have the effect of diverting much of their activity, much of the activity of the Provisionals, from—I am sorry; I could not concentrate; it was my own fault.
§ LORD SHACKLETON
I apologise to the noble Lord. My noble and learned friend came down to speak to me and I said I wanted to listen to the noble Lord.
§ LORD KILBRACKEN
I did not mean to stop. I lost track of what I was saying. It would be my hope—and I believe it would be the case—that the Provisionals would divert much of their energies from military to political aims, Furthermore, I believe it would be the base that if Sinn Fein were thereby enabled to put up candidates for the different elections it would show to the Province as a whole and to the world at large the very small degree of support that they in fact have in the country, and also, as a matter of interest, where that support was located.
It is perhaps preferable that I should go on to speak about the loyalist organisations while moving this particular Amendment. The organisations which I have proposed should be added to the list of proscribed organisations are the Ulster Defence Association and the Ulster Freedom Fighters. I do not propose to read out a catalogue of all the deplorable, vicious, cruel acts that have already been carried out by those two organisations. I would be the last person to deny or to try to condone in any way the terrible things that have been done by the Provisional I.R.A. I weep for Ireland when I think of those things. But if any credibility is to be given to the impartiality of the Government in this unhappy 1464 matter, then those organisations on the other side of the fence whose actions in many cases have been every bit as deplorable must be included, too.
The Ulster Defence Association is a para-military force: they wear uniforms, they use violence, they have fired on the British Army, they have used intimidation, and whether or not they are worse —and how can one compare such things? —than the Provisional IRA for heaven's sake! how can they be compared with Fianna na hEireann? Probably your Lordships have never heard of Fianna na hEireann; probably your Lordships have never heard of Cumann na mBan, but the nearest equivalent I can give to the former is to say that it is the Republican Boy Scouts or the Nationalist Boy Scouts or the Catholic Boy Scouts. I am not pretending that a lot of those lads in the present circumstances do not grow up to be members of the IRA, but these are kids, and what Fianna nah Eireann is doing compared with what the UDA or the UFF are doing is nothing. Cumann na mBan is the women's organisation—the corps of women. Of course they are being used. They are taking part in violence but can one compare what they are doing with terrorism, with UDA and the UFF? Saor Eire is included in the list of proscribed organisations. That means "Free Ireland". There is an organisation called Saor Fire. How many noble Lords have heard of it? How many members of Saor Eire have been brought up in the courts in the last two years? I do not know. Yet this organisation is proscribed and the UDA, which your Lordships will have seen on television on many occasions, and the kind of acts of terrorism which they perform, is omitted.
Now we have the Ulster Freedom Fighters. Many people have surmised that the Ulster Freedom Fighters are an extremist branch of the U.D.A. I am not in a position to say whether or not that is true, but I can say that whatever is said about the U.D.A. the actions of the U.F.F. are, in my opinion, even more horrible, even more desperate, even more vicious and even more inhumane than those of the Provisional I.R.A. Here is an organisation that goes out night after night with the sole object of murdering men and women, for the sole reason that they are Catholics. That is their avowed aim. May I just say in parenthesis that 1465 I am a Protestant. It has come through on the news to-day that last night six uniformed masked and hooded young men wearing red jackets with U.F.F. badges walked into a pub in East Belfast. It was a Protestant pub. I have to use the language "Protestant pubs" and "Catholic pubs". In that pub they boasted that six Catholics would be murdered by the U.F.F. this weekend to avenge the death of a Protestant last week.
I ask the Committee, and I ask the noble and learned Lord who has accepted one Amendment to-day, to accept another Amendment. Will he believe how much it would mean in Ireland if the Government could show their sincerity when they speak of impartiality by accepting at least this Amendment? I beg to move.
§ 8.8 p.m.
§ THE LORD CHANCELLOR
The Amendments discussed are of two kinds. One proposes to delete certain names in the Schedule and the other two Amendments propose to add certain names to the Schedule, and I will deal with them in that order. I cannot claim any knowledge whatever of Gaelic orthography and therefore I will not dispute with the noble Lord as to whether the names are accurately spelt. I am told that so far as the British Government are concerned the names have been spelt in exactly the same way since 1922, but that does not mean that the spelling is necessarily right. I can only say that we have done the best we can with a singularly intractable subject.
So far as their identities are concerned, these are all organisations—to quote from Clause 19 of the Bill—that the Secretary of State considers to be concerned in terrorism or in promoting or encouraging it. If the noble Lord has any evidence that we are wrong in thinking that the named organisations are concerned in terrorism or in promoting or in encouraging it, no doubt my right honourable friend would be prepared to consider it; and as the noble Lord will see from subsection (5) of Clause 19, the Secretary of State has power to remove it by order, subject of course to Parliamentary control, if he is so satisfied. Personally, I do not feel any doubt from the little I have seen and heard about all these organizations—and I have read something 1466 about each one—that I would not be readily persuaded that they are not concerned in terrorism in Northern Ireland, or in promoting or encouraging it. But if the noble Lord thinks he can satisfy my right honourable friend it is open to him to try.
As regards Protestant violence, which has erupted to a lamentable extent recently, let me say at once that my right honourable friend views it with every bit as much horror as violence from the other community. I do not propose to discuss whether the extent of the Protestant violence is equal to, less or more than the violence which comes from the other side. It is equally lamentable and equally detestable wherever it comes from and whatever actions are done in support of it. So far as the organisations are concerned, the addition of names to the list—although the noble Lord proposed to add them to the Schedule to the Bill—must really be judged by the criteria set forth in subsection (4) of Clause 19. If he has hard evidence that an organisation as a whole is concerned with terrorism or with the promotion or encouragement of it, I have no doubt that my right honourable friend will add it to the Schedule with the utmost diligence, but at the moment my right honourable friend is not satisfied that the U.D.A. as a whole is concerned with terrorism or with promoting or encouraging it, although I would not say that of some of its members.
As regards the extraordinary series of murders which are claimed to have been done under the banner of the U.F.F., or Ulster Freedom Fighters, I entirely agree with any condemnation the noble Lord chooses to heap upon those murders. They are every bit as detestable as murders in the opposite direction or acts of violence in the opposite direction, and if my right honourable friend becomes satisfied that there is an organisation, as distinct from a number of individual murderers using that name, I have no doubt that he will add it to the Schedule.
At the moment it is difficult for me to ascertain very much about this. The only information I have got, which of course is all I can work on, is that it is not clear what organisation, if any, exists under the name of the U.F.F.; but may I say straightaway to the noble and 1467 learned Lord that I, too, am Protestant although I do not usually find it necessary to say so. So far as I am concerned he can feel safe in condemning anybody who is executing a dastardly act and claiming it to have been done under this title. I am sure my right honourable friend will add it to the Schedule if and when it becomes established that there is such an organisation, and if and when it becomes possible to identify who belongs to it. But do not let the noble Lord have any misapprehension about this, either about me or any other member of the Government. If anything, I view the actions of murderers of my own so-called religious faith with even greater horror than I do the actions of those people who believe in a faith which I do not share. It is far more awful to see people who ought to be agreeing with one doing these horrible things than it is to see people with whom one disagrees doing them.
As regards diverting Sinn Fein into respectable channels, I only have to say that all they have to do is to stop murdering our children and their fellow countrymen and then perhaps they will not be on the Schedule.
§ BARONESS WHITE
I must say I have been impressed by some of the arguments put up by the noble Lord, Lord Kilbracken, and although I appreciate the Government have not had much time —the Amendments have been put down only recently—none the less when one considers the balance of advantage in the very difficult political situation in Northern Ireland, would there not be a great deal to be said for at least accepting Amendment No. 7? I felt that the noble and learned Lord the Lord Chancellor was to some extent splitting hairs. He said that we are not sure who actually belongs to this organisation. Are the Government sure who belongs to these other organisations? One of their characteristics is precisely that one does not know exactly who belongs to them, or how they are organised. I would have thought when one has that long list of proscribed Catholic organisations, one would surely be well justified in adding to the Schedule the U.F.F. What do they exist for, except terrorism? That, after all, is the whole object of such 1468 organisation as there may be. It seems to me there is advantage, in the situation in Northern Ireland, in adjusting the balance somewhat in this Schedule by including an organisation of this kind, even if one cannot define it. It has its name. It purports to act in the name of the organisation. Its whole object is exactly what would make it a prescribed organisation; namely, that it believes in methods of terrorism. I would have thought it was the path of statesmanship to include this particular Amendment.
§ 8.13 p.m.
§ LORD SHACKLETON
Before the noble Lord comes to speak again, if he is going to, may I intervene? Curiously enough, I find myself more in agreement with my noble friend Lord Kilbracken than with my noble friend Lady White at this particular moment. I think we are in very real difficulty. For a start, I dislike intensely the fact that there is a Schedule of this kind at all. If I may say so without being patronising, I think the noble and learned Lord who has been so extremely helpful to the Committee to-day, did not entirely appreciate the force of argument of my noble friend Lord Kilbracken; namely, that ultimately bodies like Sinn Fein have got to return to civilised society, and the noble and learned Lord did in fact say that they had only to give up murdering and they could do so. But as my noble friend pointed out, the Republican Clubs in a sense were Sinn Fein for this purpose, and this is a very difficult political judgment.
If I may give my own views on the Amendments before us, I would have been inclined, for reasons that I will give, to have deleted Sinn Fein, but I am opposed to adding other names to the list for reasons partly given by the noble and learned Lord and partly because of conclusions that I have come to myself. There is no doubt of the existence of the organisations already in the Schedule, but my own information is similar, namely, that a group of murderers choosing a name, of which they are certainly not worthy, will not be restrained, and may even be encouraged, by the addition of their name to this Schedule. My noble friend Lord Kilbracken I know feels very strongly, and I fully acknowledge his sincerity I absolutely agree with him that 1469 it is extremely important that the Government should show complete impartiality. It happens to be my personal view that the Secretary of State in fact passionately believes in achieving this impartiality, and since there are powers under Clause 19 to add or subtract to the list, I would ask the noble and learned Lord, because I know the Secretary of State for Northern Ireland, and the noble Lord, Lord Belstead are listening to this debate, to consider the argument. We do not have the information in this House to come to a conclusion. We have sought always to act responsibly in this matter. My inclination would be in fact to remove Sinn Fein from the list, but not to add the others, for reasons that I have partly given in this matter. But I am bound to say I am not in a position to form a judgment on this, and therefore I can only urge the Government to bear the matter in mind for the future. The time may come; I am still not despairing in spite of the awful things. I find it difficult to differentiate between the more extreme murders on either side. This is the awful nature of the situation.
So while I welcome the fact that my noble friend Lord Kilbracken has raised these matters, because it is right we should face them, my own firm view is that we ought not to take a decision to include these organisations. I am not saying that either to save the Government or myself from embarrassment; nor am I in favour simply of a gesture. But I do ask the Government—and perhaps either the noble Lord, Lord Belstead, or the noble and learned Lord, when they come to reply, will say that they will look scrupulously at this matter. They have included the Ulster Volunteer Force. There may be other wild groups. Nobody has suggested proscribing the Tartan gangs; it is not really possible. I would not know who the Ulster Freedom Fighters are. It is deplorable that they should do what they do. But we all agree on this question, regardless of our religious beliefs.
The most substantial part of the argument is that Sinn Fein should return. We pressed quite hard that the ban on Sinn Fein should be lifted for the election, but for reasons that were partly political within Northern Ireland, the problems that the Government themselves have with extremist Protestants—and not always 1470 extremist Protestant movements—they decided against that course. I hope these arguments will be seriously considered by the noble Lord. If he wishes to divide the Committee that is a matter for him, but I certainly should not find myself, for reasons which I have given, able to vote for his Amendment.
§ 8.20 p.m.
§ THE LORD CHANCELLOR
First of all, may I thank the Leader of the Opposition for the kind things he has said about me and for the arguments which he has deployed, some at least of which I find wholly acceptable. I suppose in a sense everybody in the Committee dislikes having a Schedule at all, and I certainly wish that there were no such thing. If we could get out of the situation in which organisations had to be proscribed nobody would be happier than I, except perhaps my right honourable friend. But the fact is that it is no good talking about acts of statesmanship or wisdom or anything like that, or about what is honest and what is not. That is really nonsense; you have to apply your mind to questions of fact. Is there an organisation? Is it a terrorist organisaton, or is it concerned with the promotion or encouragement of terrorism? Those are the criteria, and impartiality does not mean finding two names to proscribe which are Roman Catholic in origin and have Gaelic surnames, and two which call themselves loyal and fight the Queen's Forces on the other side and proscribe them. You have to ask yourself seriously whether the criteria are satisfied. If they are, they go on; if they are not, they do not go on.
§ LORD SHACKLETON
May I interrupt the noble and learned Lord? With the greatest respect, I do not think it is only a matter of fact; it is to a very considerable extent a matter of judgment and to some extent a matter of political judgment. The case here concerns listings, bearing in mind that the Republican Clubs were not banned. Therefore it is not only fact, it is a matter of political judgment.
§ THE LORD CHANCELLOR
I do not wholly agree with that. I do not think my right honourable friend would relish, and I do not think the Leader of the Opposition would relish, the right to proscribe an organisation, that is to say 1471 to make membership of it a criminal act, as a matter of judgment or equality. You must be satisfied that it is a criminal organisation as a whole. It shocks me profoundly that it should be suggested that just because you think it is politically desirable to remove or to add an organisation to the list that you should do it just because it is politically desirable, as a matter of political judgment. We are talking here about calling an organisation, a criminal association, a criminal conspiracy, with the effect that everybody who belongs to it is automatically a criminal. I simply cannot accept that a member of the Executive ought to approach this in anything except a quasi judicial spirit. I think it would be absolutely destructive to our liberties if we were to do so, and I feel certain that my right honourable friend or any member of the Government would not wish to do so.
The noble Lord the Leader of the Opposition, referred to the Republican clubs. That is precisely, I should have thought, a case in point. No one could wish more than I do that the people who are now murdering our children and one another should stop doing it and go back to some form of political activity; and no doubt my right honourable friend was so satisfied about the Republican clubs, and they were able therefore to put forward candidates. If he were satisfied about the other organisations no doubt he would remove them from the list too; and they have only got to stop doing what they are doing now, according to his information, for that to happen. The noble Lord appealed to me. Of course I shall report to my right honourable friend what the noble Lord has said, and I can assure him that he will require no prompting whatever—although he will of course pay additional attention to anything the noble Lord says—and if there is hard evidence that these people are not concerned with terrorism or with promoting or encouraging terrorism, he will be only too pleased to remove them from the list.
When you come to the other people, the noble Baroness really misunderstood me when she said that I was saying that you must not put them on the list because you do not know who belongs to them. I never said anything of the 1472 kind. What I said was—and I think the noble Lord the Leader of the Opposition got it right—that we do not know that there is such an organisation. I received a letter the other day from somebody who complained because we did not proscribe "Hell's Angels" in this country in exactly the same way as the I.R.A.—so she said (I think it was an old lady who wrote it)—was proscribed in Northern Ireland. I had to write back to the dear old thing and say to her "Well, 'Hell's Angels' is a name which is given to groups of people who wear a particular sort of clothes, but so far as I know they are not an organisation in a sense in which you can put your finger on them". The people here concerned are murderers; these murders have been committed; they are horrible murders. There are two people, who for some reason were interviewed by members of the Press, who claimed —and apparently with some justice—to be guilty of those murders. They deserve the most complete condemnation, and if they are guilty they certainly ought to be punished as murderers. But in order to proscribe an organisation you must be satisfied that there is the organisation there. It is no good saying that about "Hell's Angels" or "Teddy Boys" or something like that, and my right honourable friend is not yet so satisfied.
In addition, of course, it is necessary not indeed to know who belongs to them, but to believe that the organisation is of a kind of which you can identify the members by some test which will enable you to punish them, otherwise you achieve nothing except words by saying that you proscribe them. I was very grateful for what the noble Lord the Leader of the Opposition said about my right honourable friend. He has, I think, established a quite extraordinary reputation for sincerity and fair-mindedness about this. Of course he will put organisations on if he feels that that is justified by the event, although I do not think he will do it as a matter of political judgment alone. The noble Lord wishes to intervene?
§ THE LORD CHANCELLOR
The noble and learned Lord does not know of 1473 this. The noble and learned Lord is a member of the Government, but not the member of the Government personally responsible for knowing that these things exist. I have read a good deal about Saor Eire, and what I have read I do not like. I have not verified it of personal knowledge and have naturally had to rely on information. My right honourable friend is no doubt in a better position. If the noble Lord has some hard evidence that it does not exist, or is a respectable organisation, no doubt he will submit that to my right honourable friend and my right honourable friend will listen to it with all the patience for which he is remarkable.
§ 8.29 p.m.
§ LORD KILBRACKEN
There are three separate Amendments on different subjects, but I think the best thing I can do is to reply to the debate on all three Amendments and then consider the movement of them separately. It is, of course, true that under Clause 19 the list of proscribed organisations can be extended or diminished; but there are obvious cases in regard to which changes should be made, albeit not perhaps to-day, or next week when I shall not be here.
If I may speak first about Sinn Fein, the noble and learned Lord said that if Sinn Fein wanted to be removed from the list of proscribed organisations all they had to do was to stop murdering other people. The official Sinn Fein managed to get themselves removed from the list simply by changing their name to the Republican Clubs. But as to the Provisional I.R.A., I hold that is not the case; that they are murdering people, not the Provisional Sinn Fein. It may be —I do not know—that some members of the Provisional Sinn Fein are also members of the Provisional I.R.A., but that certainly does not appear to occur in every case, and in general the way they are organised is that Sinn Fein is in charge of the political side and the I.R.A. are responsible for the violent side. Therefore I do not think it is quite enough to say that if Sinn Fein were to stop murdering this would make it possible for their name to be removed.
However, although my noble Leader said that this was the Amendment for which he felt most attraction, and I was most grateful to him for his intervention, I must say that the ones to which I attach 1474 much greater importance are that the U.D.A., or, even more so, the U.F.F. should be added to the list of proscribed organisations. The point has been put, how do we know that the Ulster Freedom Fighters exist? That sounds like a philosophical question. How does one know that anything exists? How does one know that Saor Eire exists or Fianna na hEireann. They do not go round in any particular uniform; they do not declare themselves as members. But the U.F.F. does. We cannot say that in order to be proscribed an organisation of violence has to register or apply for a licence to be an illegal society. It is illegal; it is underground; it is performing horrible acts. And it tells us that it exists; it wears a uniform and it has U.F.F. on the band. It wears a red jacket. It rings up the newspapers and say, "This is the Ulster Freedom Fighters calling and this is what we have done: we have just killed two more women", or whatever they have done. The noble and learned Lord the Lord Chancellor said that it was desirable to prove—or this was the gist of his remarks—that everyone engaged in the organisation was involved in violence.
§ THE LORD CHANCELLOR
The noble Lord has got it wrong. I said that the organisation as a whole was involved. That does not mean everyone in it; it means the organisation as a whole. And I chose my words carefully.
§ LORD KILBRACKEN
That the organisation as a whole is involved in violence. Is it possible to say of any of the proscribed organisations, except perhaps the I.R.A. and the U.V.F., that the organisation as a whole is involved in violence from any facts that are available? And we are not going to get them handed to us by the organisation concerned. We have to go on information coming into the security offices or through the Press. Does it not, on the contrary, seem that the Ulster Freedom Fighters as an organisation are much more generally involved in violence than Fianna na hEireann, for instance, and Cumann na mBan, a women's organisation, where I know there are two or three or four unhappy girls who are involved in violence of this sort, but not the great mass of them? But the Ulster Freedom Fighters are there. They go out at night in armed bands and kill men and women because 1475 they are Catholics. I do not intend to press my first Amendment, No. 5, to a Division, but, on the other hand, I should find it hard to withdraw my Amendment No. 7 when the time comes.
§ On Question, Amendment negatived.
Page 26, line 15, at end insert ("The Ulster Defence Association.")—(Lord Kilbracken.)
§ On Question, Amendment negatived.
§ LORD KILBRACKEN
Is it possible for me to ask the noble and learned Lord whether he will make representations that the U.F.F. should be added to the list? Could he ask his right honourable friend to consider most seriously—and I ask with great sincerity—that that action should be taken?
§ THE LORD CHANCELLOR
What I have said, and I say it again, is that I know my right honourable friend will add them if he feels the facts justify it. My noble friend Lord Belstead is sitting beside me and is, I hope, agreeing with most of what I say. My noble friend will pass on what the noble Lord has said to my right honourable friend. But my right honourable friend needs no urging; he detests these things every bit as much as the noble Lord does—and I can say that from intimate knowledge of him—and as I do.
§ LORD SHACKLETON
I am in a slight difficulty because I do not think this Amendment has been moved. If the noble Lord would move it, I would say a few words.
Page 26, line 15, at end insert ("The Ulster Freedom Fighters.")—(Lord Kilbracken.)
§ 8.35 p.m.
§ LORD SHACKLETON
I must say I find this an extremely difficult question. If they are not an organisation, I am very averse to dignifying these thugs in any way at all. For that reason I should find it difficult to vote for this Amendment. I think some of the evidence my noble friend has given suggests that there is perhaps a little more to this. I have no 1476 doubt that the matter is being considered. I would just ask the noble and learned Lord to consider any balance of argument about the facts on this issue—and I am not saying it in terms of political judgment, because that really does not arise. If they are in fact only a few horrible murderers there may be no point. It would appear to me that anybody who goes under the name of "Ulster Freedom Fighter" is almost certainly someone who is either a murderer or has aided and abetted; I would not know about that. But if there is the slightest evidence that there is some sort of organisation, if they wear their particular coloured clothes and so on, I hope the proposal will be considered. I know the right honourable gentleman the Secretary of State is constantly considering these matters. At the same time, he has listened a great deal to the advice given him by others, and we are very grateful to him, and it is advice that I think my noble friend is seeking to give tonight. I would still urge him not to press his Amendment to a Division. None the less, I hope that the strength of feeling that has been expressed will be considered. I am sure it will be.
§ THE LORD CHANCELLOR
It will not only be considered but it is very largely shared, and certainly by my right honourable friend and myself. I absolutely agree with what has last fallen from the Leader of the Opposition.
§ LORD KILBRACKEN
In view of what the noble and learned Lord has said—and I appreciate the way he has put up with what I have said to-night—and in view of the advice given to me by my noble friend (and again I appreciate the support that he has given me), I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 agreed to.
§ Remaining Schedules agreed to.
§ House resumed: Bill reported with the Amendments; Report received.
§ THE LORD CHANCELLOR
My Lords, I beg to move that the Bill be now read—I am in some doubt here. There is the Report stage and I have still to move that the Report be now considered. I had thought that the Third Reading was for another day, but I was 1477 being urged on by the Chief Whip, and, under such goading, I was about to commit a folly—and I believe that it would have been a folly.