§ 3.14 p.m.
§ THE LORD CHANCELLORMy Lords, I rise to move that this Bill be now read a third time, First of all, may I apologise both to the House and to the noble and learned Lord, Lord Gardiner, who speaks for the Opposition on this matter, as I very nearly deprived him of his chance to raise his Amendment again. This was not due to any excess of original sin on my part, but to a mal entendu of which I think he is probably aware. I will not therefore talk about the Amendment which is going to be moved in a moment, if the House gives the Bill its Third Reading, but I must deal with the two points I promised to deal with on Committee stage, the point of the noble and learned Lord, Lord Stow Hill and the noble Lord, Lord Shepherd.
The noble and learned Lord, Lord Stow Hill, asked what the position of a defendant would be if a count for a nonscheduled offence was included in an indictment for a scheduled offence and then disregarded by the court by virtue of Clause 2 subsection (3) of the Bill. I should like to explain shortly again why this subsection is drafted in the way it is. It makes clear first of all that there is no purpose in including a non-scheduled count in an indictment for a scheduled 1518 offence, since to do so would simply oblige the court to disregard the nonscheduled count. It would therefore be a mistake if, as the noble Lord suggested, a non-scheduled count were included in an indictment of this kind. In Northern Ireland prosecutions for these serious offences are, in practice, instituted by the Director of Public Prosecutions; that is, of course, the Director of Public Prosecutions for Northern Ireland. The House may well conclude that it would be most unlikely for the Director to make a mistake and include in an indictment for a scheduled offence a count for a non-scheduled offence. If, none the less, he did make that mistake, it would be equally unlikely that the Director would be so bold thereafter as to proceed against the defendant separately for the non-scheduled offence.
The reason why the subsection is drafted in the way it is is to ensure that if, in error, a non-scheduled count is included in the indictment for a scheduled offence, the validity of the indictment itself should not be called in question on that score. The drafting achieves this by providing simply that in that event the non-scheduled count should be disregarded. Although I think it accurately set forth the intention of the Government in the Committee stage, perhaps I should add this, since my recollection is that the words that I used might not have made clear a rather sophisticated point which I am now about to disclose to the noble Lord and to the House
Let us imagine an entirely imaginary case. Suppose that a man takes and drives away a motor vehicle without the consent of the owner, and subsequently uses it to commit a serious offence such as the planting of a bomb or an indiscriminate shooting attack. He would then, of course, subsequently be charged with the explosives or firearms offence, both of which are scheduled under Schedule 4 to the Bill. Because of Clause 2 subsection (3) no count for the offence of taking and driving away a motor vehicle would then be included in the indictment, although there would, of course, be evidence to justify prosecution for such an offence. If the defendant were thereafter acquitted of the explosives or firearms offence, I could not undertake on behalf of the Northern Ireland authorities that he 1519 would not subsequently be prosecuted for driving and taking away a motor vehicle without the consent of the owner, and if I did convey that impression on Committee I certainly should have been misleading the Committee, but I do not think any body at the time was considering that kind of possibility. I hope the noble Lord will feel that I have dealt with his point satisfactorily. At any rate, I have taken the trouble to find out the answer to his question.
The second point was raised by the noble Lord, Lord Shepherd, when he asked on Committee stage why the age limit of 14 had been provided for in the clause dealing with restrictions on bail, Clause 3 subsection (5). I think I can tell the House that in practice, although children under 14 may become involved in disorders in Northern Ireland, as alas! we all know from evidence on our television screens, it is most unusual for anyone so young to be charged with the very serious offences listed in Schedule 4 to the Bill. This indeed was the conclusion of the Diplock Commission, which pointed out in Chapter 9 of their Report (and particularly in paragraph 104) that it was boys aged 14 to 16 who were used to carry out serious acts of terrorism. The Government have no wish for the provisions of the Bill to extend more widely than is strictly required by the situation. The restrictions on bail, therefore, do not extend to children aged under 14. I was grateful to the noble Lord for raising the point that it might encourage the I.R.A. to use such young children more than they do already, but I doubt whether this is sufficient reason for increasing now the possibility that children under 14 would be remanded in custody, and I did in fact give to the noble Lord that reason when he asked me on Committee.
Lastly the noble Lord, Lord Brockway, said that if an Order were made under the urgency procedure provided for under Clause 29 (3), the fact that it had been made ought to be announced and the House should be able to debate it. Subsection (4) of the clause indeed requires that any Order made under the urgency procedure should be laid before Parliament after being made and must be approved by both Houses of Parliament within 40 days for it to continue in effect. 1520 It is necessary for the subsection to provide that if Parliament does not approve such an Order anything done under it before that date shall not be affected, because otherwise there would be no point in having a procedure for urgent cases. Things done under the Order before it was dealt with in Parliament must not be capable of being challenged as to their legality if the Order then fails to win Parliamentary approval. I thought at the Committee stage that it was clear, but I now confirm that it is clear that despite the urgency procedure the Order must get Parliamentary approval within 40 days. With that I beg to move that the Bill be now read a third time.
§ Moved, That the Bill be now read 3ª.—(The Lord Chancellor.)
§ LORD STOW HILLMy Lords, I rise only to thank the noble and learned Lord for the explanation he has given of the point I raised. It makes the matter perfectly clear to me, and I am grateful to him.
§ On Question, Bill read 3ª, with the Amendments.
§ Schedule 1 [Detention of terrorists]:
§ 3.32 p.m.
§
LORD GARDINER moved the following Amendment:
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.")
§ The noble and learned Lord said: My Lords, at the Committee stage of the Bill I moved an Amendment with two objects. The first was to provide that if a man against whom a detention order had been made had been released by the Secretary of State, either on conditions or without conditions, and was then recalled, he should have a right of appeal to the appeal tribunal. Secondly, that if he had not already appealed to the tribunal against the detention order he should have the same right of appeal as if the detention order had been made on the date of his recall. On the second part of the Amendment, I naturally accepted an undertaking that the noble and learned Lord, the Lord Chancellor, gave on behalf of the Secretary of State, and therefore I was unable to press the Amendment to a Division, but intimated that I would return to it at a later stage 1521 of the Bill. By what I of course accept was a mere misunderstanding, we proceeded to the Report stage, and therefore I take it that there is no objection to my moving this Amendment on Third Reading instead of on Report.
§ The point is a relatively simple one. I agree with my noble friend Lord Brockway that trial by jury is one of the pillars of civil liberties in this country. On the other hand, as I have said throughout, I am persuaded by the Diplock Report that there are classes of cases in which this is simply not practicable in the conditions which exist in Northern Ireland. What we have done in substance is to substitute for the executive decision on interment an executive detention, subject, however, to a right of appeal to an appeal tribunal. The basic reason, I apprehend, for giving that right of appeal to an appeal tribunal is that the basic civil liberty of all is the difference between being free and being put in prison when it has not been proved that you have committed a criminal offence. Broadly speaking, I am in agreement with the somewhat stringent views of the Diplock Commission in these matters, having regard to the position which actually exists in Northern Ireland.
§ But there is a separate case which will now arise for the first time, which has not arisen before, in which a man who is free is suddenly put in prison. This derives from the provision contained in paragraph 36 of Schedule 1 to the Bill, that if a man is detained under a detention order the Secretary of State may release him, with or without conditions, and may subsequently recall him. At the time of his recall he is living in freedom. He is now put into prison. I cannot see why he is not to have an opportunity of going to the appeal tribunal. I agree that we do not find it, on either side, too easy to envisage exactly what the circumstances will be. This is, of course, because no such order has yet been made. I have had particularly in mind the cases in which the Secretary of State may release a man on conditions. He may then be informed by information, which may be accurate or inaccurate, that the man has broken his conditions, and therefore he recalls him. But there are many people with grudges to pay off in Northern Ireland, on one side or the other, and it would seem in no way incon- 1522 sistent with the main purpose of the Bill that a man so recalled should have some opportunity before some sort of body of proving that he was not in fact in breach of his conditions.
§
When I raised this point at the Committee stage the noble and learned Lord the Lord Chancellor said:
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."— [OFFICIAL REPORT, 19/7/73, col. 1457.]
As I pointed out in reply, I had not suggested that the matter should go to the commissioner. That suggestion was made in the other place, but the Secretary of State thought that that was not the appropriate body to which it should be referred. The superior body is the appeal tribunal, primarily a body of lawyers, and therefore not, I hope, in any way reflecting on the position of the Secretary of State, because the Bill does provide, when a detention order is made, for appeals to this appeal tribunal. There ought, I think, to be some body to whom a person who is recalled from freedom can go. As I have said, it is a short point. I may be wrong, but I thought the noble and learned Lord the Lord Chancellor was somewhat sympathetic to it, but found himself somewhat bound by the views of the Secretary of State. I hope the Secretary of State may have had the opportunity to consider the point further since the Committee stage of the Bill, because I cannot see what possible harm this Amendment would do to anyone. I beg to move.
§ THE LORD CHANCELLORMy Lords, I did, of course refer this point back to my right honourable friend, but he still does not feel able to give the noble and learned Lord comfort in this matter. I think there is a point of principle involved; indeed, it is probably the point of principle that I understand and the point of practice that I do not understand quite so well. As emerged on Committee, we are really talking about a very refined point as well as a short one, and one which requires a certain amount of elucidation, although the noble and learned Lord has made the case plain from his own point of view. The point which emerges is this. The Secretary of State has only a very limited right under the Bill to put a person inside without 1523 trial, and that is limited by time to, I think, 28 days. The next stage in his confinement will be when his case comes up, as it must, in front of the commissioner provided for by the Bill, and the Commissioner will say whether or not he is to stay inside.
The criteria which the Secretary of State must apply to the original detention for 28 days and the commissioner must apply to the permanent detention confirming the Secretary of State's view in the matter (if he does confirm it), is, first, whether or not the proposed detainee has been concerned with terrorism, and secondly that his detention would be necessary in order to protect the public. Those are the two conditions in the Bill which have to be satisfied, in the first place by the Secretary of State and in the second by the commissioner.
If the commissioner decides against the detainee and he then has to stay inside, he still has several chances, but an immediate chance is to go to the Appeal Tribunal, which is the Appeal Tribunal here in Part III composed by Sir Gordon Willmer and two English Q.Cs, and which either confirms or rejects the commissioner's report. They apply the same criteria. I think that I was told that something like a quarter of the cases which actually go to the Tribunal on appeal—that is to say, not a quarter of the cases which are decided but a quarter of the number who take the trouble to make the appeal, which they have to do within 21 days—are actually allowed, so it is no mere formality by any means.
Having gone to the Appeal Tribunal the man has to stay inside, but with three further qualifications. The first qualification is that if the Secretary of State feels any qualms about the case at any time he can refer it again to the commissioner; that is to say, if new evidence comes to him, or he feels that the man may have changed his outlook on life, he can refer the case against to the commissioner at any time; and he must do so at the end of a year, and after that year he has to do so every six months.
This Amendment only arises if none of those things happen. What we must postulate for this purpose is that the Secretary of State has decided first that the proposed detainee is a terrorist, and 1524 secondly that his detention is necessary for the protection of the public, and that the Commissioner has decided to the same effect, and then that either the Appeal Tribunal has decided to the same effect or the man has not exercised his right of appeal. Under the Bill the Secretary of State can allow a man out on condition, and it is only to that situation that the Amendment applies. As the noble and learned Lord told the House, and I told the Committee, this is a power which has never yet been exercised, so that to some extent one is speculating as to the kind of situation in which could be envisaged what the noble and learned Lord has in mind. The only case that I have been given in which there is any probability of the conditional release taking place—although, of course, the words of the Statute are perfectly general —would be if the man concerned gave an undertaking, which was believed, that he would leave the Province altogether either to go abroad or to work in other parts of the United Kingdom where it was thought no longer necessary that he should be detained in the interests of the public.
The noble and learned Lord said—and this is the nub of his Amendment—supposing he is released on condition and then recalled by the Secretary of State (as the clause provides that the Secretary of State may do if he thinks that the condition has been broken), he should have a further right of appeal to the Appeal Tribunal even if he has not exercised his right of appeal in the first place during the first 21 days. If the Amendment is accepted, he can apply within 21 days to the Appeal Tribunal. What he may then refer to the Appeal Tribunal is a question as to whether or not in fact the condition has been broken. In other words, supposing he says, "True, you released me on conditions, and true you have recalled me on the basis that the conditions have been broken. I deny that they have been broken, and therefore I want to appeal to the Tribunal to challenge whether you are right in saying that they have been broken."
As I say, that is a rather sophisticated point, because if the condition—and it is the only condition which has been put before me, and therefore it is the only condition that I have been able to put before the House—were that he had 1525 promised to leave the Province and he had not, and had promised to get employment either abroad or in another part of the United Kingdom and had not, I do not think that it is likely that this could ever become a disputed question of fact, because the Secretary of State could only recall him if he was still in the Province, as that is the only way that he could put his finger on him. It is a somewhat unreal point but I would put it in this way, as I ventured to put it before the Committee—and I think that there is a question of principle involved—that you are foreseeing the case here where the Secretary of State, the Commissioner, and, I would say, by implication or actually the Appeal Tribunal, have already decided that the man is a terrorist and ought to be inside. The view which the Secretary of State still adheres to after having studied the Report of this House is that there is a reason of principle why the Secretary of State's recall, at that stage, after the decision has been made not once but twice (and perhaps not twice but three times), that the man was a terrorist and his detention was necessary for the protection of the public, should be an executive act and not a judicial one. The noble and learned Lord has moved his Amendment with his customary moderation, and I hope that I have replied in the same way; and I kept my bargain that the matter should be referred back, but I am afraid that on behalf of the Government I cannot accept the Amendment.
§ LORD GARDINERMy Lords, I am sorry to hear what the noble and learned Lord the Lord Chancellor says. Obviously this new power of release and then recall
§ must have been put in with the intention of using it at some time or other. I quite accept that this is likely to arise at a later stage. A detention order is made, and a man may appeal to the Appeal Tribunal, which may uphold the order. A time then passes, and maybe quite a long time, and the moment arrives when the Secretary of State decides that it is now safe to release the man, either with or without conditions. Obviously, he must have some good reason for doing that. Equally obviously, the man is not going to be recalled unless something has happened since his release which leads the Secretary of State to change his mind. I suppose that normally this would be a breach of conditions. One can well imagine a case in which the Secretary of State may make art order for release provided that the man does not enter Belfast, or with some such proviso.
§ It cannot be right in principle that, while a right of appeal is given to a man who is first put into prison, here, where the effect of the recall is to take a man who is at liberty and put him in prison again because of something he has done since the date of his release, or something that the Secretary of State believes he has done, the matter should not be subject to exactly the same super-vision by the Appeal Tribunal as the Secretary of State accepts in the case of the original detention order. For those reasons, I respectfully ask the House to determine this point.
§ 3.40 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 64; Not-Contents, 65.
1527| CONTENTS | ||
| Airedale, L. | Champion, L. | Hacking, L. |
| Amherst, E. | Chorley, L. | Henderson, L. |
| Amulree, L. | Clwyd, L. | Hoy, L. [Teller.] |
| Archibald, L. | Collison, L. | Jacques, L. |
| Arwyn, L. | Crook, L. | Janner, L. |
| Avebury, L. | Diamond, L. | Kennet, L. |
| Bernstein, L. | Donaldson of Kingsbridge, L. | Kilbracken, L. |
| Beswick, L. | Douglas of Barloch, L. | Leatherland, L. |
| Birk, B. | Douglass of Cleveland, L. | Loudoun, C. |
| Boothby, L. | Evans of Hungershall, L. | McLeavy, L. |
| Brayley, L. | Faringdon, L. | Ogmore, L. |
| Brockway, L. | Fiske, L. | Pargiter, L. |
| Brown, L. | Gaitskell, B. | Peddie, L. |
| Buckinghamshire, E. | Gardmer, L. | Piatt, L. |
| Burton of Coventry, B. | Gamsworthy, L. | Royle, L. |
| Camoys, L. | Geddes of Epsom, L. | Sainsbury, L. |
| Samuel, V. | Stow Hill, L. | Williamson, L. |
| Shackleton, L. | Strabolgi, L. [Teller.] | Wootton of Abinger, B. |
| Shepherd, L. | Summerskill, B. | Wright of Ashton under Lyne, L. |
| Shinwell, L. | Taylor of Mansfield, L. | |
| Slater, L. | Wade, L. | Wynne-Jones, L. |
| Somers, L. | White, B. | |
| NOT-CONTENTS | ||
| Aberdare, L. | Erskine of Rerrick, L. | Nugent of Guildford, L. |
| Alport, L. | Ferrers, E. | O'Neill of the Maine, L. |
| Amory, V. | Fraser of Lonsdale, L. | Porritt, L. |
| Arran, E. | Goschen, V. | Ruthven of Freeland, Ly. |
| Atholl, D. | Greenway, L. | St. Aldwyn, E. [Teller.] |
| Balfour, E. | Grenfell, L. | St. Helens, L. |
| Belhaven and Stenton, L. | Grimston of Westbury, L. | Saint Oswald, L. |
| Belstead, L. | Hailsham of Saint Marylebone, L. (L. Chancellor.) | Sandford, L. |
| Brooke of Cumnor, L. | Sempill, Ly. | |
| Brooke of Ystradfellte, B. | Hylton-Foster, B. | Shannon, E. |
| Cole, L. | Inchyra, L. | Strange, L. |
| Conesford, L. | Lauderdale, E. | Strathcarron, L. |
| Craigavon, V. | Leicester, Bp. | Strathclyde, L. |
| Crathorne, L. | Limerick, E. | Strathcona and Mount Royal, L. |
| Daventry, V. | Long, V. | |
| de Clifford, L. | Lothian, M. | Strathspey, L. |
| Denham, L. [Teller.] | Mar, E. | Sudeley, L. |
| Derwent, L. | Merrivale, L. | Tenby, V. |
| Drumalbyn, L. | Milverton, L. | Tweedsmuir, L. |
| Ebbisham, L. | Monck, V. | Tweedsmuir of Belhelvie, B. |
| Effingham, E. | Mowbray and Stourton, L. | Vivian, L. |
| Elles, B. | Northchurch, B. | Windlesham, L. (L. Privy Seal.) |
| Ely, Bp. |
On Question, Motion agreed to.
§ 3.48 p.m.
§ THE LORD CHANCELLORMy Lords, I beg to move that the Bill do now pass.
§ Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ LORD KILBRACKENMy Lords, on a point of order. The noble and learned Lord announced the result of the voting but he did not say that the Not-Contents had it.
§ THE LORD CHANCELLORI think the noble Lord is entirely wrong—I did say that the Not-Contents had it, and so they did.
§ LORD BROCKWAYMy Lords, with the permission of the House I should like to make a personal reference. During the Committee stage I used words which seemed to impugn that the noble and learned Lord the Lord Chancellor was insincere. I ought not to have used those words. I have expressed regret to him and I should like to express regret to the whole House.
My Lords, the noble and learned Lord the Lord Chancellor has made reference 1528 to a point which I raised during the Committee stage. It was on Clause 29 which gave the Secretary of State power by reason of urgency to make an order or regulation without the draft being approved by the two Houses of Parliament, and during the Committee stage I suggested that such an order or regulation should be announced to both Houses of Parliament on the date it was made and that immediately afterwards there should be a debate in either House which would confirm it. I urged that this was particularly important because acts done before the approval are permitted under subsection (4). The noble and learned Lord made reference to this point in his speech to-day. I would continue to urge its importance and, though there is no Amendment before the House, I will ask the Government to give us an indication, in these exceptional circumstances, not only that the Order should be before the House for 40 days, which is quite a long period, but that the House should be given an opportunity to come to a decision about it immediately.
I do not propose to follow the example, given early last week on the Constitutional Bill, to deliver a Second Reading speech. I was not present at the Second Reading but I appreciate that that is undesirable. 1529 I want only to raise one consideration which has been very much in my mind over the weekend as, oppressed by the situation in Northern Ireland as we must all be, we are seeking means by which violence can be lessened and harmony can be developed. In the situation in Northern Ireland there is just a faint streak of blue in the sky of clouds, in the fact that, quite clearly, there is a reaction among the Catholic community against the violence of the I.R.A. This was indicated in the elections to the National Assembly, and it has been indicated in many incidents in Belfast where Catholic opposition to the violence of the I.R.A. has been expressed. This is the first reason for some hope as one looks at the situation in Northern Ireland.
The second reason for hope is that there has now been an acceptance of cooperation in the new National Assembly, both by the official Unionist Party and by the Social Democratic and Labour Party. But one must appreciate that, while there has been that acceptance in principle, there are still serious differences and there is a great danger that that co-operation may not take place. In considering the Committee stage of this Bill over the weekend, I have conic to the conclusion that its enactment at this moment is a very great danger to the development of an end of violence and to harmony in Northern Ireland. I believe that the enactment of this Bill at this moment will prejudice the co-operation in the National Assembly, which is the great hope of any solution of the problem in Northern Ireland. While it is probably too late to urge that the enactment should be postponed in order that an opportunity to end the violence and to bring harmony might be given, I should like to urge upon Her Majesty's Government, with all the depth of sincerity that I can command, that even though this Bill be adopted to-day there should be the greatest caution in its application, and that it should be regarded as something in the background which should not be immediately, and perhaps unnecessarily, applied, because that would make the possibility of improving the situation in Northern Ireland more difficult. I regret this Bill, and I hope that Her Majesty's Govern- 1530 ment will be very cautious in the way that they apply it.
§ 3.56 p.m.
§ LORD KILBRACKENMy Lords, in the course of the weekend my thoughts have been running in very similar channels to those of my noble friend who has just sat down, and I cannot allow-this Bill to become law—as I am afraid it is bound to do—without adding my own words of opposition to those which he has already expressed. I feel this opposition because, if I may paraphrase the words of my honourable friend Mr. Fitt in another place, it is a violent contradiction of every idea of making politics work in Northern Ireland. I believe that these diminutions of normal democratic principles will tend to increase rather than to diminish violence as the days go by, and this Bill fails to show a true understanding of the Northern Ireland tragedy and of the Northern Ireland people. It has been widely agreed—and I have expressed my agreement—that the jury system may be impossible in the Six Counties to-day. But what a condemnation that is of Government attitudes and of Government policies over fifty years or over three hundred years, whichever you choose! If there can be no juries, surely the suggestion of my noble and learned friend Lord Gardiner could have been considered, that there should be three judges or a judge and two assessors. But my proposal, that the British Bar should be called upon to supplement those so as to make that suggestion possible, was not even replied to.
I think that my most specific objection is to the Government's refusal to accept the Amendment moved by my noble and learned friend Lord Gardiner and by the noble and learned Lord, Lord Stow Hill, to what I would call the torture clause. The methods used to extract information, which were subsequently found illegal, were then enumerated but there were questions which have not been asked and questions which have not been answered. No one has inquired why those methods for obtaining information were ever used in the first place. On whose orders were they employed and who, if anyone, has been punished for using them? Secondly, it does not seem to have been realised that those methods were used not only to 1531 extract confessions from those who were being tortured, but to extract information in general about the organisation of the Irish Republican Army. Therefore they are not in any way affected by the bar on them which is implied in Clause 6(2).
The methods that were employed are now generally admitted to have Seen illegal. That is the opinion stated by my noble and learned friend, and lie can imagine the gratitude that is felt for the strength and reasonableness with which he expressed that opinion, which resulted in the supposed abandonment of those methods. How sure can we be that they are not being used? The noble and learned Lord the Lord Chancellor said at the Committee stage that no one had suggested this; but my noble and learned friend Lord Gardiner had told us how he had received allegations that they were being used. Of course, he went on to add that he could not say whether the allegations were true or not. The noble and learned Lord the Lord Chancellor had himself implied, though it might have been through a slip of the tongue and I do not want to make it a debating point, that they might still be used when he said that if we wanted to stop the practices which fall short of the convention we must do it by the ordinary processes of the law. If he speaks of "wanting" to stop the practices ", surely it must be possible to infer that they still exist.
Finally, I want your Lordships to consider what are the implications of the Lord Chancellor's statement that the effect of passing my noble friend's Amendment would be to increase the number of people who would be imprisoned without trial. The Amendment in question merely had the effect of substituting "severe and prolonged pressure" et cetera for "torture or inhumane or degrading treatment". The only implication I can make of the Lord Chancellor's remark is that the only possible way to bring some cases to court as opposed to the Commissioner is by using "severe and prolonged pressure".
My final objection, my final disappointment in this Bill, was that the Government were unwilling to include what I will call the extreme loyalist 1532 organisations other than the U.V.F. in the list of proscribed organisations. I do not intend (it would be inappropriate now) to go again into the details, but it seems to me to discredit the Government's avowd aim of showing impartiality —and the right honourable gentlemen the Secretary of State is, I believe, an impartial person who commands great respect among many people in Ireland, North and South of the Border. But how can that position of impartiality be maintained if an organisation such as Fianna na hEireann, the Catholic version of the Boy Scouts, with the undertones of Republicanism that there are bound to be in such a community, is on the proscribed list, while an organisation of murderers and thugs—and they are an organisation—such as the Ulster Freedom Fighters and the members of that organisation are perfectly legal?
My Lords, those are the most important of my objections to what I can only describe as a loathsome piece of legislation. At the Committee stage I was one in a minority of four who voted for the Amendment. If I were to divide the House to-day I suppose that I should be in a minority of one. Proud though I should be to be that one, I do not intend to divide; but from the bottom of my heart I wish that this Bill had never come before this House.
§ 4.6 p.m.
§ THE LORD CHANCELLORMy Lords, may I say this to the noble Lord, Lord Brockway, to deal with his speech first? In the first place, I am grateful to him for what he said at the outset of his remarks. I think that in politics one learns not to bear malice after the event. I can assure him that I accept what he said in the spirit in which it was offered and even if he had not said it I should have borne no malice after the event.
Dealing with the points that were made seriatim, first I must point out to him that I said on the Third Reading some little time ago that if an urgent order is made because it is urgent, Parliamentary approval is none the less required under the Bill under Clause 29(4). The reason why, presumably, an order has to be made under that procedure without the prior approval of Parliament is that an order has to be made quickly and Parliamentary time cannot be found on the same day. Whether it might not present insuperable 1533 difficulties in this House, I do not know. It obviously might be difficult here to provide a debate on the same day, but it would certainly provide—and no one knows this better than the noble Lord, Lord Brockway—very considerable difficulties in another place. They have a procedure there, quite independent of those provided by the Bill, of staging an urgent debate if debating the matter is urgent. Whether it would apply in that place to any order made under the existing Bill I canot say; but the complete safeguard is provided by Clause 29(4) and I cannot really offer any hope of anything more being given.
The remainder of Lord Brockway's speech was a plea that the Government should be cautious in applying the Bill. I am not sure what he meant by that because Clause 30 clearly says that it must come into force within two weeks of its passage into law. He should be under no illusions that that is what the Bill says and at this stage it will pass into law in that form. On Committee stage I took a great deal of trouble, as I did on Second Reading, to point out that what made it so urgent that it should come into law was that jury trials for murder and other crimes of violence only less serious than murder have now broken down in the Province. I explained the figures, I quoted from a Report. The Report is, broadly speaking, that if you get a Protestant jury it will undoubtedly convict a Roman Catholic but not a Protestant; if you get a Roman Catholic jury it will undoubtedly convict a Protestant but not a Roman Catholic; and if you get a mixed jury they will not agree. I do not see the point of a jury trial if a situation like that can be and has been created.
I do not see that there can be any justification, quite alone from the actual terms of the Bill, for demanding some kind of postponement; and in the Bill there is very little room for non-application by Executive action apart from my own feelings that I do not myself much care for legislation which leaves it to the Government of the day to decide whether or not to operate it. I have in the past been twitted from the Liberal Benches for allowing too much room for discretion in the Government of the day as to whether they apply Bills which are passed by Parliament. So I wish that I 1534 could give a more sympathetic reply to the noble Lord, Lord Brockway, but I cannot.
I was glad that he said he saw a little blue sky—perhaps he sees things slightly more optimistically than some of us. He accepts what I believe to be the case that in the Roman Catholic community there has been a reaction against violence and there has been an acceptance of cooperation by both the Unionists and by the Social and Democratic Labour Party. I should like to repeat in that connection what I think I have said in this House before; and if I have not said it before in this context I say it now. The French have a very useful proverb which ought to be studied, I think, by both communities in Northern Ireland. It is: "The absent are always wrong". What we demand from both communities is unqualified co-operation with the plans which we have for making life tolerable for them and their children. To stand out for unreasonable conditions on either side, or conditions which they know perfectly well will lead only to secession by the other side, is to ensure that life for them and their children will be intolerable, and perhaps intolerable for us as well.
The noble Lord spoke of this patch of blue sky. I was always taught when I was very young that it had to be large enough to make a pair of trousers for a seaman before you could really trust it as an augury of good weather. The noble Lord did not go so far as to say that the necessary trousers would be made by the patch of blue sky that he sees. I would say to him that we in this country, and indeed in Ireland, have a climate which leads us to be cautious about not taking out an umbrella or a mackintosh just when we see a patch of blue sky. We may not want to use the umbrella or to wear the mackintosh, but I think we should be foolish not to take it out in the weather conditions which we have been having in Northern Ireland now for some five or six years.
My Lords, I very much regret the speech of the noble Lord, Lord Kilbracken. I do, I must say, wish to say one or two rather firm things to him. In the first place, he went so far as to say that he acknowledged the necessity for doing away with jury trials at the moment. That, I think, is the principal 1535 provision of this Bill. Why therefore should he, having said that, say he would wish to be in a minority of one voting against it? I must remind the noble Lord again that it was he who, before this Bill, on the only previous occasion when he has spoken about the Administration of Northern Ireland, reproached me with a perverse acquittal by a jury of a Protestant who was undoubtedly guilty of an offence. And when I told him that the Government cannot do anything about perverse acquittals, because the law of the land implies that, when a jury has acquitted a man, he goes free, he did not seem to take the point, or what it meant. Now the Government have introduced legislation which would have the effect of preventing that kind of thing; and I should have thought that we should have been entitled, even from the noble Lord, to a little more generosity and courtesy than he has given us on this occasion, when we have done the very thing that would have achieved what he wanted.
§ LORD KILBRACKENMy Lords, may I interrupt the noble and learned Lord to say that I understood perfectly well the point he made a year ago. I said on Committee stage that I had perfectly well understood it. I acknowledged it again to-day; and I said again to-day, as he has just reported, that I regretted the necessity for the abolition of the jury system in Northern Ireland. I do not see why he has to keep telling the House about it.
§ THE LORD CHANCELLORMy Lords, it is because the noble Lord said the things that he has just said that I have to keep reminding the House of the moral position which the noble Lord, Lord Kilbracken, has chosen to adopt—because he said it was the most loathsome piece of legislation, and because he said he would be willing to be the only one in the House to stand against it. That is why I have to remind the noble Lord of his attitude, and I shall do so again if need be.
Now, my Lords, I turn to the other point he made. Having said that he acknowledged the necessity for doing away with jury trial, by implication, except for the point to which I shall come, he did not make much of a case either on Committee or now. On Second Reading, apparently, he had been 1536 suffering from the misfortunes which he found in hay-making. He did not make a case, but he said what a reproach it would be if jury trial has broken down after British administration, he thought, for 300 years. This is just the sort of thing which causes lives to be lost in Northern Ireland; when that kind of inflammatory remark is made. I wish people would realise that in relation to those unhappy Six Counties inflammatory remarks actually cause the shedding of blood. Our boys are fighting there for peace and for good will between two warring communities. They are being shot at by both communities, and that kind of remark does not help very much.
The next thing he said was about the Compton methods, and he asked a number of questions about them. This Bill has nothing whatever to do with the past. The noble and learned Lord, Lord Gardiner, who actually sat on the Inquiry, observed a decent restraint. We had a debate about the Report, which was very widely welcomed, as was the Government's decision that those methods should be discontinued. The noble Lord, Lord Kilbracken, semed to speak as if there was something disreputable about trying to find out information about the exact organisation of the I.R.A. I cannot imagine why our fighting Forces should not have sought that information; although it is quite right that the Government should have insisted that such methods should be discontinued on grounds quite different from those published.
§ LORD KILBRACKENMy Lords, does not the noble and learned Lord the Lord Chancellor agree that it is disreputable to have tried to discover that information by the methods that were found to have been employed, and which have since been declared illegal?
§ THE LORD CHANCELLORMy Lords, I should have thought that the noble Lord would have welcomed the ready acceptance by the Government of the Minority Report of the noble and learned Lord, Lord Gardiner. The majority of that Commission did not condemn the methods employed in the same terms as the noble and learned Lord, Lord Gardiner.
§ LORD KILBRACKENMy Lords, may I ask—
§ THE LORD CHANCELLORMay I answer one question before I am asked to reply to another? The noble Lord must know that the Government immediately accepted Lord Gardiner's view as distinct from the majority of the Commission. I should have thought that the noble Lord would have found it in his heart to be a little more generous to that position, as was the noble and learned Lord, Lord Gardiner. Now what was the next question?
§ LORD KILBRACKEN My Lords, may I ask why those methods were used in the first place? And is it not a fact that it is exactly methods of that kind that typify a misunderstanding of the Irish people and it is those methods which have led to further bloodshed, further unhappiness, further misery, further damage?
§ THE LORD CHANCELLORMy Lords, I am not to be drawn into a debate on the Compton Commission very nearly a year after it has reported. It was perfectly open to the noble and learned Lord to debate that subject then and—
§ LORD KILBRACKENI am not "learned".
§ THE LORD CHANCELLOR—the noble and not learned Lord—to debate that subject then. It was perfectly open to him to do so. I do not propose to be drawn to-day, on the Motion, That the Bill do now pass, into anything except the consideration of its terms. I would only say this. I believe that the, forebearance of the people of this country, when their children are being shot at and murdered and blown up; when we have seen bombs exploded outside our principal criminal court in a crowded street in the City of London; the forebearance of this people and this Government, with the kind of treatment that they have received from the organisation, to the activities of which some of this Bill's provisions are distinctly directed, has been perfectly miraculous. I only hope that it continues in spite of the noble Lord's attacks on the British people and their history, after having sworn an oath of allegiance at the beginning of this Parlia 1538 ment—and sent his medals back to the Queen.
My Lords, the next point which the noble Lord raised was to cast doubt on whether the methods used had really stopped. The short answer to that is that if, as he says, and the noble and learned Lord, Lord Gardiner, says, they are illegal, no charges, I think, have so far been brought in the courts. If they are illegal they can be brought in court, as the noble and learned Lord said on the Commission, both by way of criminal prosecution and by way of action for tort. And I heartily endorse what the noble and learned Lord told us on Second Reading about the impartiality of the Judiciary. My Lords, I think that is all I need to say about that. The noble Lord put forward his point of view in Committee. He divided the House against the advice of his Leader, and he was one of a minority of four. I think the sense of the House was made abundantly plain on the hearing of that debate.
The next point the noble Lord raised was that we had not put forward the extreme loyalist organisations as proscribed under the Schedule. That, as he knows perfectly well, is incorrect. The Ulster Volunteer Force is in the Schedule, as he ought to have told the House if he was going to make that charge. The other organisation of which he complained, I thought I had dealt with adequately in Committee. I said that they were as detestable to me as they are to him, and that its members would be punished as severely as they were: and I explained the exact reason why at the present stage my right honourable friend did not feel it possible to add that organisation to the Schedule under the powers of the Bill. The Bill gives him powers to do so if the case is made out. Yet the noble Lord thinks it is proper to say that in his experience this is one of the most loathesome pieces of legislation proposed. This is the kind of fairness that we receive at the hands of the noble Lord. I can only ask the House to pass this Bill, and if the noble Lord desires to divide against it, he can, but he will be doing neither Ireland nor Ulster any good by so doing.
§ On Question, Bill passed, and returned to the Commons.