HL Deb 05 August 1975 vol 363 cc1601-44

9.36 p.m.


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.—(Lord Donaldson of Kingsbridge.)

House in Committee accordingly.

[The Baroness TWEEDSMUIR of BELHELVIE in the Chair.]

Clauses 1 to 3 agreed to.

Clause 4 [Removal of certain limitations on power to grant bail]:

Viscount MASSEREENE and FERRARD moved Amendment No. 1:

Page 2, line 41, at end insert— (1A) At the end of the said section 3 there shall be added the words 'or of the Royal Ulster Constabulary'.

The noble Viscount said: In view of the fact that the noble Lord, Lord Monson, is not in his place, perhaps I had better step into the breach. We discussed this matter on Second Reading, and we have tabled this Amendment because we feel, and I think other noble Lords feel—at any rate, they did on Second Reading—that members of the Royal Ulster Constabulary are at a disadvantage compared with members of Her Majesty's Forces in the North of Ireland regarding the question of bail. I understand the legal position, in that when members of Her Majesty's Forces under the various Army Acts do something which they should not have done, they are not treated like civilians in that they are under Army discipline. Therefore, when a misdemeanour has been committed, an officer of Her Majesty's Forces—or, for that matter, a private—can appear in court and say that on a given date he will produce the offending member of Her Majesty's Forces.

Members of the RUC, on the other hand, feel, rightly or wrongly, that they are at a disadvantage over this. I agree that in the higher court a judge can, if he wishes, grant bail to a member of the RUC, but that is not so in the magistrates' court. As I say, I understand the legal complications, and I further understand that whereas in the Armed Forces men are in barracks and can be confined to barracks until they are produced in court, members of the RUC go home to their houses and there is not quite the same amount of control over them.

I think that this is an exceptional set of circumstances. Here we have men who are in great danger. That has been proved by the statistics of the numbers they have lost in patrolling for security reasons in the North of Ireland. We want to keep RUC morale high, and I believe that it is high, though the recruiting figures would perhaps not quite hear that out for I understand that they are 28 per cent. under strength. I do not know the cause of this, but we should do everything to keep their morale high. Therefore, I ask Her Majesty's Government, since the Secretary of State has, I understand, intimated that it is his desire to widen the policing area of the Royal Ulster Constabulary and gradually to phase out the use of the Army in certain areas, to do everything possible to keep the RUC's morale high. I repeat for the third time that I understand the legal difficulties here, though I am a layman in the law. I ask the Government whether we could not make an exception and do as the Amendment suggests; that is, that the RUC should not be treated as civilians but should be treated for the duration of their role during the emergency as members of Her Majesty's Forces.

I ask Her Majesty's Government to try to make an effort to treat the RUC as members of the Armed Forces. I am sure that in reply the noble Lord, Lord Donaldson, will say that this would be to restrict the RUC because if they were treated in the same way as the Forces they would have to be herded into oar-racks and they would not be allowed to go back to their own houses. But I ask the Government to make an exception here in order to keep morale high and to boost recruiting, and in order that the courts can give bail to members of the RUC. I ask the Government to make a great exception in this case. I realise their difficulties, but I ask them to review the case very sympathetically.


I should first like to say a word. There are three Amendments which all deal with this question and I feel that it would be for the convenience of the Committee if we had a general debate and took the Amendments seratim. The effect of the Amendment is to extend Section 35 of the principal Act to exempt the Royal Ulster Constabulary from the limitations governing the granting of bail in cases involving scheduled offences. In its present form, the section exempts from the limitations persons under the age of 14 and certain members of Her Majesty's Regular Naval, Military and Air Forces, and nobody else. May I first say, as I said on Second Reading, that the Government are extremely proud of the performance of the RUC under circumstances of maximum stress. We are most reluctant to be unable to agree to the Amendment, which would to some extent ease their position.

My right honourable friend the Secretary of State has considered this fully and has discussed it in detail with my right honourable and learned friend the Attorney General, and the RUC accept that it would not be possible for it to keep a police officer confined in the same way as the Army is able to keep a soldier in that period between the charge and the trial, which may be several months. That is a question which the noble Lord, Lord Belstead, asked me, and that is the reply to it. The purpose behind Section 3 of the Emergency Provisions Act is to ensure that persons who are charged with scheduled offences will not be granted bail, unless it is clear that they will comply with any conditions imposed, that they will not interfere with witnesses, and that they will not commit any offence while on bail. Those are the three conditions laid down in the Act.

These are difficult matters to decide in normal circumstances, and they require speculation about future conduct and consistency of decisions is important. Accordingly, the power to make such decisions has been vested in High Court judges. Such considerations do not apply, however, if it is a soldier who is charged with a scheduled offence and the Army guarantee the conduct of the soldier. A soldier is subject to continuance of military discipline and appropriate steps can be taken to ensure his conduct. In these unusual circumstances, it is logical to allow magistrates to decide on bail without necessarily applying the criteria mentioned.

A police officer is—and I think that this is extremely important—and always has been, regarded as a civilian member of the community, accountable to the law like all other citizens. This has always been a fundamental matter of constitutional significance. The Royal Commission on the Police in 1929 observed—and its observations were repeated and endorsed by the Royal Commission of 1962—that the police have never been recognised, either in law or by tradition, as a force distinct from the general body of citizens. Any movement to differentiate between a member of the public and a police officer, by providing that the police officer shall be treated more leniently, would be a grave step, however minor the application, particularly at a time when we are trying increasingly to move over to the police enforcement of law and order, as opposed to the military.

However, there are practical reasons which must be taken into account as well. If a police officer is granted bail he will return to his home and family in Northern Ireland and may well appear in the area in which the incident in respect of which he has been charged occurred. It may be that he will encounter the person who made allegations against him, and witnesses. He may decide to leave the country. All these possibilities need to be considered before bail is granted. In some cases there may be a police officer who is, in fact, guilty. This might very well happen, and the point of bail is that it should be given only where it is clear that this will not happen.

A soldier, by contrast, returns to his barracks. Charged with a serious offence, he is given the option of signing a voluntary undertaking to be kept in close arrest, or the alternative of not being granted bail but of being kept in civil custody. If he signs the undertaking, he is kept either under lock and key or under escort, and in any event in accordance with those conditions under which the court grants bail. If a soldier breaches his undertaking he can be arrested by the military for a Service offence arising out of that breach. If the soldier withdrew his agreement and attempted to escape military custody, he could also be arrested by the RUC for a breach of conditions of bail. He would then be brought before the court. Therefore, it is unnecessary for the criteria in Section 3(2) of the Act to be applied. Were a police officer to sign an undertaking of this kind, it would not be possible for the police to keep him under arrest or to restrict his freedom in the way open to the military authorities.

As I have said, the police do not have the necessary facilities. Although in practice police officers have always answered to their bail, it is necessary for the person granting bail to consider the criteria in Section 3(2), which I have already quoted. If these criteria are to be considered, consideration should be by a judge. This is a difficult case and we have here an Amendment which needs the most serious consideration. The last consideration that I should like to put forward is that there have been only four cases where a policeman was charged with a scheduled offence. In each case, the existing methods by which he goes to the High Court have worked, and in each case he has got there. In spite of the fact that many of us have great sympathy with what the noble Viscount has moved, I hope that the Committee will not accept this Amendment.


I should like to support strongly what my noble friend Lord Massereene and Ferrard has said, despite what the noble Lord, Lord Donaldson, has just explained. The dissatisfaction felt by the RUC was gone into at some length in paragraphs 37 and 62 of the Report produced under the auspices of the noble and learned Lord, Lord Gardiner. In the former paragraph, which dealt specifically with the question of granting bail to the RUC, the Gardiner Report made the same point as did the noble Lord, Lord Donaldson of Kings-bridge, saying that the Regular Forces can usually arrange to have one of their number held in military custody during remand, whereas the police cannot usually so arrange. My noble friend Lord Brookeborough pointed out on Second Reading that in his opinion this practice contravenes the Army Act (though I am not competent to judge this).

So far as the civilian status of the police in Northern Ireland is concerned, I agree that in the normal way the police are civilians. Yet I must point out again that, in the Gardiner Report, in the tables on pages 61 and 62, showing casualty figures, the statistics of violence between 1st January 1971 and 30th November 1974 are given. The deaths are listed under the heads of "Security Forces", "Civilians" and "Terrorists". The noble Lord will correct me if I am wrong, but I am almost certain that the police are listed under "Security Forces" in this table.

I pointed out on Second Reading that no fewer than 65 policemen and women have been murdered in Northern Ireland since the start of the emergency. This is as if just under 2,300 police had been murdered in England, Scotland and Wales during the same period; which is rather more than one per day. One can imagine the repercussions in Great Britain proper if this had happened. I have done some more calculations since then. Over the past six years, approximately one ordinary civilian in every 2,200 has been murdered, but more than one policeman in every 73 has been murdered. This is an extremely high proportion. In other words, a policeman is 30 times more likely to be murdered than an ordinary civilian, and Heaven knows the figures are bad enough, so far as the latter are concerned.

Police morale is all important. Mr. Merlyn Rees himself said on 27th June: The police are the key to the security situation. They must have support. I wonder whether your Lordships noticed in The Times today an article by their defence correspondent in which he pointed out that the RUC is 1,859 below their established strength. This is more than 28½ per cent. below strength, which I should have thought was a serious situation. If their morale is not boosted in some way, the situation will surely get worse.

The noble Lord, Lord Donaldson, made the point that if the police were to be released on bail and returned to the areas in which they lived, they might confront the person who had made a charge against them and this could lead to awkwardness and even violence. I should like to make the point that if they are remanded in custody their wives and families could be at risk. There have been several attacks on the private houses of policemen in Northern Ireland by either the provisional or the official IRA.

May I touch briefly on Amendment No. 3 tabled by my noble friend Lord Brookeborough. It is a little more restrictive than that of the noble Viscount, Lord Massereene and Ferrard, and my-self in that it refers to regular members of the RUC on duty. I have no particularly strong feelings about the regular members except that I should like to point out that just over 10 per cent. of those murdered have, I understand, been reservists. I think that on balance it is desirable that they should be extended this protection as well. The words "on duty", I must say, with respect to my noble friend Lord Brookeborough, seem a little imprecise and do not say at what point the member of the RUC is on duty; whether at the time of arrest or when the alleged scheduled offence has taken place. This is for the Government to decide. I would urge your Lordships to accept either Amendment No. 1 or Amendment No. 3.


As the noble Lord, Lord Monson, referred to the report of the Committee of which I was chairman, may I say first that there are different ways of arranging statistics. But always when you talk about Security Forces in the plural it is clear that this includes both the Army and the police, notwithstanding the fact that the police are civilians. May I add that we spent a considerable time over this question, discussing it at more than one hearing with the police themselves, with the Army and with others. Speaking only for myself, I formed the highest view of the quality of the Royal Ulster Constabulary. We were sympathetic with them because at first sight it looked as though the Army were, as it were, being given some advantage in relation to the police, and so we were naturally sympathetic with the police.

Then we found that there were these differences. First, it is a fact that in the Army, particularly by consent, a man can be confined to barracks and put under close arrest. We are talking about scheduled offences such as murders or being found in possession of explosives, and very serious offences for which ordinarily very few people would be given bail. But this enables the officer to say to the court: "I can undertake that if you give this man bail he will appear to stand his trial."

The police superintendent is in no position to say anything of the kind. A man can be kept in barracks or an Army camp easily because he does not leave the place, but the chief constable has no power to keep a man in a police station. The police are not quartered in a police station; they do not live in it, they live in their own homes. The only place in a police station in which a man could be put is in a police cell which obviously would be most undesirable. Is the man to live at home? I doubt very much whether this would be in the policeman's interest.

Here is a policeman who has shot an 18-year-old Catholic or Protestant, and feeling is running high. Police do not prosecute in Northern Ireland. It is only in England and Wales that they prosecute. Nowhere in Western Europe do the police prosecute; there is always an independent body. But the Director of Public Prosecutions has come to the conclusion that the evidence is such that this man ought to be charged with murder. Of course feeling is running high. Is this policeman to stay at home or go out on duty in the streets in the area in which these feelings are running high? We came to the view that although at first sight there might seem to be some unfair distinction between the Army and the police, they were in a different category. The soldier was, in a sense, in the fortunate position of having an officer who could say: "I can undertake that this man will appear to stand his trial." The police could not do that. It was doubtful whether it was in the interest of the police themselves that they should remain at home or do their ordinary duties. Further, they would at least be safe from any attack by prisoners. Although at first sight it might seem that the Army were being in some way privileged, really this was not so, and really this was the only practical alternative.


Before the noble and learned Lord sits down, may I ask whether he would agree that the sort of offences for which the police would think it reasonable that bail should be granted are probably not the really serious offences such as manslaughter or possession of explosives, but rather the minor ones such as assault occasioning actual bodily harm under the Offences against the Person Act 1861, or a minor offence under the Firearms (Northern Ireland) Act 1969, such as possessing a firearm without a certificate?


I think it is mainly applying to scheduled offences, and of course they are really serious.


I wonder whether I might ask the noble and learned Lord one question: why is it that so many members of the RUC seem to want to have their cases dealt with in a magistrates' court? Perhaps they are misinformed or do not understand the situation, but it appears that a great many of them want to be treated in the same way as the Armed Forces, without any question of bail.


We are talking about Section 3 of the 1973 Act. This Act limits the power to grant bail only in the case of scheduled offences; so these are really the serious offences. Turning to what the noble Viscount said, I think the police simply had not thought this out. We found when we talked to them that they had not really considered what the consequences would be if we had agreed to their suggestion. They just said: "If the Army are treated in this way, why are we not treated the same?"


I am sorry to rise to take up yet again a point put by the noble and learned Lord, but I was looking at Schedule 4 to the 1973 Act and the two relatively minor offences I cited were definitely listed as scheduled offences; that is to say, an assault occasioning bodily harm and possessing a firearm without a certificate.


My Lords, it is not usually regarded as a very minor offence to beat somebody up.


My noble friend Lord Brookeborough has put his name to this group of Amendments, and perhaps before he speaks on them I might just very briefly indicate how I feel from the Bench on which I sit, having had the benefit of listening to the noble and learned Lord, and also to the noble Lord, Lord Donaldson. First, I should like to say that I was very glad that my noble friend Lord Massereene made the point, as did also the noble Lord, Lord Donaldson, and the noble and learned Lord, that there is every reason at the present time to try to see that the Security Forces—both the Army and the police—receive similar recognition in every way for the very dangerous work that they do.

Listening to the noble and learned Lord, it crossed my mind that so often in past years one has heard or read of the popular cry being raised that the Security Forces harass people. But what those who raise that cry so very rarely admit is that the Security Forces, in their turn, often endure severe provocation. They are liable to be involved in incidents where their own lives are at stake, for instance, from gunmen who can open fire quite indiscriminately often in the dark, whereas the Security Forces have to be sure that they do not harm anyone, least of all an innocent person.

As I listened to the noble and learned Lord, I wondered whether he would mind my making the point that what may be the worry in the minds of the RUC—indeed it is a worry in my own mind—is that in the event of a mistake of judgment, possibly in the dark, possibly just because of force of circumstances in a given situation, a soldier or a policeman could find himself charged with a scheduled offence. Of course I realise that the Director of Public Prosecutions has to take a decision on this, and this is possibly a worry in the minds of the RUC. Certainly it was something which was in my mind when I ventured, on Second Reading, to welcome the fact that the Attorney General had clarified the matter about his absolute discretion to "certify out" offences from the scheduled offences in particular cases.

That leads me on to say that I have listened carefully to what the noble and learned Lord has said. I was going to ask three questions, and he has answered all of them, so I do not have to put any of them. I, for my part, as a layman found that the explanation and the words of the noble and learned Lord satisfied me. Indeed, I wonder—and I think my noble friend Lord Brookeborough might elaborate on this—whether it could just be that if the Royal Ulster Constabulary were to press this, and it were to be agreed, they might find themselves in a rather ludicrous situation in which members of the RUC could find they were allowed to have bail but it must be in some form of close custody, whereas at the moment they are, as a matter of fact, being granted bail, we are all delighted to say, in the High Court and having bail as completely free citizens.

There is one question which I must ask the noble Lord and I wonder whether it would be possible for him to answer it. I think he said that the RUC accepted the point that on practical grounds it would be exceedingly difficult for them to be exempt. Does that mean that the RUC and the Government have had discussions on this matter? I should be most grateful if, when the noble Lord comes to reply, he could tell me the answer to this.

10.7 p.m.


As everybody has said, the object of the exercise is to try to see whether we can get for people who do equally dangerous jobs in equally dangerous circumstances the same treatment, if two identical men are charged with an offence at the same time. That is really where the shoe pinches. I have been extremely interested in hearing various noble Lords and noble and learned Lords discussing this subject. I still believe there is a feeling that the police are being humiliated. I quite understand, from what the noble and learned Lord has said, that there was never any such intention in the drafting of the Act or the drafting of the Report.

After going into the matter, I feel that the Army Act comes into it in only one place, and the Police Act comes in in exactly the same place; that is, that the commanding officer can order somebody to appear in court. That is the legal point at which the Army Act comes in and Army discipline comes in: he can order the accused soldier to appear in court at a certain time. I believe that the Chief Constable can do exactly the same; he has exactly the same sanction on that level. I find it hard to believe that the dramatic conditions of murder and things like that which have been spoken about would justify bail in any circumstances at all; and a magistrate, if he is given the option, could not give bail but would refer the man to the High Court in any case at that point. Therefore, I feel the matter should be examined on the question of giving power to give bail back to the magistrate.

I have had a certain amount of discussion with people on the fact that the Army go back to barracks and leave Northern Ireland. But somewhere over 50 per cent. of what I would call the fighting force in Northern Ireland is resident in Northern Ireland in some form or another. The people who are most likely to be charged are of the corporal level—somebody in charge of a party. He is likely to have a wife living in Ballykinler or Lisburn or some such place. Unless he is confined to barracks and therefore prevented from going to his family, then we are facing the peculiar situation where a soldier is given bail to be in military custody. I do not want to be too frivolous about it, but I can imagine a certain situation if an accused soldier is marched under escort back to his wife living in barracks. It seems to me that if this man is under military escort or under close arrest then he could be there for some six or nine months. Therefore, he will be very much worse off than a member of the Royal Ulster Constabulary.

There is a very good case for saying that they should be equated the other way. If I were a soldier, I should not like to be in close or open arrest and escorted about the barracks either in Germany or in Northern Ireland in the period before the case comes to court. The courts in Northern Ireland deal extremely rapidly with this kind of allegation, and for that they deserve great credit. If this discretion were to be given back to magistrates I cannot see that it would be abused. We are not asking for bail; we are suggesting that it should be equated so that magistrates could give bail if they believed that to be right. The security for bail which the magistrate gets is the power of the commanding officer to order a man to appear. I believe that the sanctions which can be applied to the policeman who is commanded to appear by his chief constable are the same, and that is why we should try to equate them.


If I may deal first with one of the points which was made by the noble Viscount who has just sat down, he said that he thought that under these conditions the soldier might well be worse off than the policeman. The answer is that at any moment the soldier can withdraw his consent and ask to be sent to prison. That has not yet happened and I do not think it is very likely to happen, but this is his right under the arrangements with the Army. Therefore, I do not think that this is a very cogent point.


Are soldiers under escort during the whole of this period or does nothing happen when, for instance, they go back to Germany?


This is entirely a matter for their commanding officer under whose discipline they are. I can add nothing to that, and as a soldier the noble Viscount should understand this. If they doubt the staying power of the soldier, he can be put under close or open arrest, or confined to barracks, or whatever they think. It is up to them. That is the position and I do not think there is any difficulty about it.

My noble and learned friend was of the very greatest assistance to me in answering the legal points far better than I could. I want to end on this—note I shall not go through the arguments again because we have been through them fairly often. The important thing is that even if—which is not the case—the Royal Ulster Constabulary could provide safe keeping for individuals in their force who were charged with scheduled offences, which are very serious offences, I do not think that either the noble and learned Lord or I would agree this should happen. The point is that it is part of the United Kingdom security system that the police are civilians. There is no difficulty and no dichotomy of a worrying kind which distinguishes them from soldiers. They have always been totally distinguished from soldiers and we think that it is desirable that they should be. Although I believe that they could not give the necessary guarantees to a judge in the way that the Army can, nevertheless even if they could I believe that it would be a wrong step.

I believe that the right thing is that, as it always has been since the time of Sir Robert Peel, the police force should be a civilian force and subject to the laws of the civilian State. It would be a very retrograde step if we went back on that principle. Also, the pressures that they are under inevitably make one wonder whether or not more ought to be done, but the more I think about it the more clear I am that the right course is that security in Northern Ireland should be handed over gradually to the civilian force which operates under the same rules as the civilian force in the rest of the United Kingdom and that gradually the necessity for Army intervention in difficult areas should cease. This is the policy of the Government. I think it is what most of us want to see, and my own view is that though it is a difficult proposition, because we all admire the RUC and would like to please them, we have to stand on this and I hope the noble Viscount will not press his Amendment.


I thank the Minister very much for his reply. I quite understand everything he has said and I appreciate the difficulties, but I am wondering whether it would be possible for Her Majesty's Government to put over to the RUC, possibly by means of a pamphlet issued to each member, the real difficulties of this case. As I said previously, a great number of them do not understand the position and they are under the impression that they are in an inferior position in regard to the law compared to the members of Her Majesty's Armed Forces. If only the Government could explain to them, as they have explained to me, and especially as the noble and learned Lord, Lord Gardiner explained it, it might do a great deal of good. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Baroness Tweedsmuir of Belhelvie)

The next Amendment is No. 3, which I understand is not to be moved.


If I may just intervene for a moment, I am not quite sure what the noble Viscount, Lord Brookeborough, intends to do with Amendment No. 3, but before we leave this topic I should like to say that we all agree with the noble Lord, Lord Donaldson of Kingsbridge, that the ideal thing would be for the situation to return to normal and for the police to act as civilians. But as I said on Second Reading, and I was not contradicted, I think the police have suffered even more than the Army as far as fatalities are concerned in proportion to their numbers. At the moment, the police are not in practice acting as civilians, and they cannot do so. I suppose that in proportion to their numbers 30 to 40 times as many police are being killed in Northern Ireland as in England, Scotland and Wales every year. For that reason alone, one feels that special treatment is reasonable.

As I understand the situation, it is felt among all ranks in the RUC and not just by the constables. Furthermore, in another place special treatment as regards bail was sought not only by the United Ulster Unionists but by the Conservatives and also most significantly by Mr. Gerry Fitt, the sole representative of the Social Democratic and Labour Party, who agreed that if the police were to be treated in a different way from other members of the Security Forces there would seem to be a lack of justice. For that reason, we remain very unhappy about none of these Amendments being accepted, but it is clear that the Government do not intend to accept any and the Committee is very thin at the moment so we must accept the situation.


Amendment No. 3 is not moved.

Clause 4 agreed to.

Clauses 5 to 11 agreed to.

Clause 12 [Invitations to join, or carry out directions given by, proscribed organisation]:

10.19 p.m.

Lord BELSTEAD moved Amendment No. 4:

Page 5, line 28, after ("invites") insert ("or by threats induces in public or in private").

The noble Lord said: The effect of this Amendment is that in addition to making it an offence to solicit or invite any persons to become a member of, or to obey, a proscribed organisation, it would also be an offence to induce anyone, in public or in private, by threats to do these things. At this late hour, I will not burden the Committee with any discussion at all about the background to the giving of threats in Northern Ireland. We all know enough about what that means to life in Northern Ireland, both for those who live there permanently and those who visit there.

If I may turn to the text of the Bill and what was said in another place on Second Reading, the Secretary of State explained that the Government wished to bring terrorists to trial, not under an overall charge of terrorism, as paragraph 70 of the Report of the noble and learned Lord, Lord Gardiner, recommended, but for specific crimes, and to this end the Government have drafted this clause and also Clause 15, which respectively bring to justice those who recruit others to an illegal organisation, and those who instruct others in the making or use of firearms or explosives.

I do not dissent from this as a line of policy being put into the Bill. My worry is whether Clause 12 covers those who threaten. When the Minister of State, Mr. Moyle, was replying to the debate on this and a group of Amendments in Committee in another place, he said he had been advised that incitement to violence is an offence. That does not surprise me. Schedule 4, paragraph 13 of the emergency provisions Act 1973 provides that: …aiding, abetting, counselling, procuring or inciting the commission of a scheduled offence is an inchoate or related offence under the 1973 Act. Obviously therefore, inciting to violence is an offence. But does this include threatening? After all, one of the scheduled offences is Section 19 of the 1973 Act, belonging to a proscribed organisation.

My question to the Government is, whether threatening others to join or to obey a proscribed organisation is covered by the words "aiding, abetting, counselling, procuring or inciting"? If it does, then, of course, I am quite prepared to withdraw this Amendment. If not—and I am no lawyer and I am not sure about this—it would seem to me that we are thrown back upon relying on a conspiracy charge when someone threatens. As the Gardiner Report explained, this is a charge which is rarely effective.

May I just add that the noble Lord may refer me to the reply of the Attorney-General to the debate on the clause in Committee, when the right honourable gentleman said that Section 1(d) of the Protection of the Person and Property (Northern Ireland) Act 1969 covers those who threaten for the purpose of joining a proscribed organisation. That would not entail trial by a single-judge court, and for that reason, I do not think it was a very satisfactory answer to this Amendment, with great respect to the right honourable gentleman. I beg to move.


Of course, if this were not covered, we would be happy to accept the Amendment. But, in fact, my advice, which is absolutely specific, is as already stated in his speech by the noble Lord, Lord Belstead, that any threats of this kind are already covered by the provisions of Section 1 of the Protection of the Person and Property (Northern Ireland) Act 1969 which provides that: any person who unlawfully causes by force, threats or menaces, or in any way whatsoever, any person inter alia to do or refrain from doing any act shall be liable on summary conviction to a fine of £500 or two years imprisonment or both, and on conviction on indictment to an unlimited fine or five years imprisonment or both. This offence is listed in Schedule 4 to the principal Act and hence is a scheduled offence. This meets the point about trial without jury. I do not think I need say more. We are in agreement on the necessity for this, and reckon it will be covered.


I must apologise. I am afraid I have not done my homework as I should. I did not think that that Section of the 1969 Act was a scheduled offence. On that, the noble Lord has fully satisfied me.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clauses 13 to 23 agreed to.

Schedule 1 [Detention of Terrorists]:

Lord KILBRACKEN moved Amendment No. 5:

Page 10, line 30, leave out ("fourteen") and insert ("seven")

The noble Lord said: In moving Amendment No. 5 I should like at the same time to refer to Amendment No. 6, which is related to it, although the two are not necessarily interdependent. This is a matter which I raised at Second Reading; namely, that when a detainee has been informed of the offence of which he is suspected he is given only one week in which to make representations, through his solicitor if he so desires, to the Adviser. I do feel very strongly that one week simply is not long enough for the man to do that. I do not want to go into detail about how he will be feeling, but he will be picked up by the Army, spend perhaps three or four days being questioned by them, and then handed over to the RUC. He is perhaps a teenager; he is not very well-educated. Perhaps within a week of arriving at the Maze Prison he is informed of the offence alleged against him, and he then, when he is just getting used to prison life, has a mere matter of one week to contact a solicitor and make his written representations for the consideration of the Adviser. In another place the Secretary of State in effect accepted that it was impossible for him to make representations in so short a time when he said that representations made within a longer period would still be considered. If that is the case, surely it ought to be in the Bill. That is what my second Amendment would do.

I appreciate that if my second Amendment by itself was accepted, this would give one week less time before the case had to go before the Adviser, or it would delay by a week the arrival of his representations from the solicitor. Therefore, I have put down two Amendments; one would extend by a week the period within which his representations had to be made, and the other would diminish by one week the period within which he has to be notified of the offence alleged against him. There should be absolutely no problem about informing him within one week of the offence alleged against him, which must be well known to the police and to the authorities. If this notification of his alleged offence is made within one week, it does not alter the length of time which has to elapse between receiving the detainee's representations and the hearing of the case. I hope that my noble friend will appreciate the difficulty in which a detainee is going to find himself in making his defence at such very short notice. I hope he may find it possible to agree to that period being doubled, which would be the effect of my next Amendment. I beg to move.


Following my noble friend, I will discuss both Amendments, No. 5 and 6, together, as he has. The purpose of Amendment No. 5 is to reduce the period during which the Secretary of State must refer the case of a person held under an ICO to an Adviser from 14 days to 7 days. One cannot expect the police to assemble all the evidence against a person overnight. My noble friend says that the information is probably well to hand. It is not always. There is sometimes a good deal of work to be done. I think it is foolish to suppose that in the case of everybody who is picked up in highly suspicious and dangerous circumstances, it is an open-and-shut case straightaway. It has to be carefully investigated. It would, therefore, be absolutely wrong to force the police to put their case within seven days. An Adviser is not bound by the same rules of evidence as a court, but clearly the police must place before him all the evidence in such a way that he can discharge his duty. Seven days would probably be enough to prepare one case, but the police would surely find it difficult to meet this deadline if, as has often happened in the past, a number of cases fell to be dealt with simultaneously. It seems to me and the Government, therefore, that a two week period is much more realistic.


The 14-day period which I am suggesting should be a seven day period is not the period within which the details of the accusations have to be presented but the period within which the Secretary of State must prefer the case to an Adviser. I do not see any reason why that should not be done within one week of the ICO being served, and the nature of the terrorist activities have to be notified only as soon as possible thereafter.


It is a question of judgement. This has been discussed in great detail with the police and the people who have to operate it and their view is that a fortnight is a reasonable period. When we come to Amendment No. 6 the opposite action is proposed. The purpose here is to increase from seven to 14 days the period within which a person held on an interim custody order may make written representations. It might be argued, for example, that a week is too short a time for the suspect to obtain legal advice or assistance in preparing his representations, but the whole purpose of having a seven-day limit here is to hasten the day by which the Adviser may begin hearing the case. There is, after all, an overall time limit of 49 days; this must be met and it is important to keep the process moving. If the individual concerned cannot get his written representations completed within the period, there is nothing to prevent him from sending them on after the date. The Adviser has the 49 days within which to make these considerations. He does not have to do it immediately, and it will mean, under the present arrangement, that he will be able to begin after seven days, and so the thing keeps moving.

These are questions of practical judgment. They are very difficult to argue specifically. This has been gone into in a good deal of detail with the people who have got to do it and I do not find that my noble friend has produced any cogent reasons for altering it, nor do I think that either of his Amendments would produce a greater level of justice. I believe that justice within the Gardiner recommendations is covered by the present time limits and I therefore hope that my noble friend will not feel it necessary to press his Amendments.


I do not agree with my noble friend in either of the two points he made in connection with my Amendments. It would be perfectly easy for the Secretary of State to see that every case was referred to an Adviser within one week. Why should it take longer than that? If what I suggest were done, there would still be the same general time-schedule after that. My noble friend said there was absolutely nothing to stop a detainee from making his representations at more than one week after being notified of his alleged offence. If there is nothing to stop him, why does it have to be stated in the Bill: A person detained may, within seven days…make…written representations concerning his case…". Surely we have to go by what is in the Bill. That is quite specific in saying that representations have to be made within that period. In my view, that is not long enough and, without any assurance from my noble friend, I feel that as a matter of principle I cannot withdraw either of my Amendments.

10.35 p.m.


I have some sympathy with the Amendment. I do not really understand why the Secretary of State cannot refer the case to the Adviser within seven days after the interim custody order has been made. The man has been arrested, the Secretary of State must have the information to show why the order has been made. All the reference to the Adviser does is to instigate the inquiry as to whether the information was or was not correct. Why this should take more than seven days after the order was made, I do not myself understand. There have been cases of great delay and that is why my Committee cut down on most of these figures. Some of the delay has been shocking. It is not right that it should be six or eight months after somebody has been arrested before he has any chance of saying a word, and then, when he comes before a tribunal, he is released.


I accept that the police need 14 days in which to assemble evidence against a suspect. But how is it that that suspect is allowed only seven days in which to find a defence against charges of which he may not be aware?


The situation is different. The purpose of the 14-day period before which the Secretary of State has to refer the case of a person held under an ICO to an Adviser, is to allow the police to prepare the case. The Adviser wants to be given as nearly as possible the full case. In the case of Amendment No. 6, the provision of a defence by the defendant does not require to be done on the "dot". It can be continued after the seven-day period and the Adviser is not obliged to produce an answer within days. He has 49 days in total to do so.

It seems to me that the figures we have here, and which were arrived at after discussion with the people who have to do this, are the most satisfactory. I feel that it is extremely difficult to make it perfectly clear why one is better than the other. I believe that it would be a pity if we started pulling the Bill about at this stage, because it would have to go back again to another place, and a number of things which we are most anxious to see done may be held up very badly. I regard this as a point of very little substance. I do not believe that hardship is being caused to anybody by the figures we have put in, nor do I feel that the people concerned would be materially better off as a result of my noble friend's suggestions. So I hope very much that he will not press the Amendment.


The police will already have told the Secretary of State that they have evidence that the man in question committed a certain crime—murdered a policeman or whatever it may be—and the Secretary of State will have weighed that evidence and decided that there is sufficient case to make an interim custody order. The man will be arrested. Somebody will have to inquire into those allegations and this will be the Adviser. But what I do not understand is what it is that the Secretary of State can do in 14 days after the arrest that he could not do in seven.


He has considered the prima facie evidence and further evidence, parti cularly linked very often with other people who have committed other crimes in connection with this, has to be put before the Adviser in order that he can see the whole picture. Is not that the case?


I am in a difficult situation. I am not well acquainted with the procedure of the House, but I understand that there is not a quorum of Members and that if there was a Division the Bill could be lost, and I have no intention of doing anything as dramatic as that. Yet, at the same time, the case put by my noble and learned friend Lord Gardiner seems to be extremely strong and completely supports what I have said; it is totally unnecessary to have more than one week in which to refer the case to the Adviser and something more than that in which to inform the detainee as to his offence. This will make possible, without interfering with the time-schedule, a period of two weeks for the detainee to find a solicitor and to make representations on a highly important matter which will affect his liberty or otherwise for an indefinite period.

Therefore, having listened to what has been said, I cannot withdraw the Amendment, but at the same time, owing to the fact that a matter of this importance—it is of great importance to Northern Ireland—is being taken at this hour of the night, before such a skeleton assembly, I will not divide the Committee, nor will I withdraw the Amendment.


Before we finish the discussion I should like to try to clarify the problem a little further. The police cannot complete their case within the 72 hours before which the ICO has to be made. They put their suspicions to the Secretary of State and he signs the ICO, which is the normal procedure. They then have to compile the substantive case, and this is, and should be, a careful, not an immediate, procedure. The Secretary of State must then decide on this evidence whether to refer the case. He will not do this before he sees the full case in front of him. This is why he requires more than seven days before he decides to refer the case to an Adviser.

My noble friend is trying to protect the accused man and I respect him for that, but there seems to be absolutely nothing in this proposal for 14 days which would hurt the accused man. It means simply that the accusation, when made, will be more carefully sorted, and if the evidence is not forthcoming the Secretary of State will not refer it to the Adviser. I believe this is a storm not perhaps in a tea cup, but in a pudding bowl.


My only reason for seeking to reduce 14 days to seven days in paragraph 5 is to enable the detainee to have 14 days instead of seven to make his representations, and still leave the Adviser with the same length of time in which to continue his case. There should be no difficulty whatever in deciding within seven days to refer the case to the Adviser. If an interim custody order has been made, it is merely an administrative matter to say that the case is to be referred to the Adviser. The person detained does not have to be informed in writing as to the nature of his alleged terrorist activity until as soon as possible thereafter.


This is an awful thing to blow up at this time of night, but perhaps my noble friend can compromise on 14 days in both instances. Accepting that the police need 14 days, why should not the accused have 14 days, also?


There is a misconception here. After the seven days, which are being discussed under Amendment No. 6, the Adviser can start his proceedings. We all want this to start and to proceed as fast as possible. It has nothing to do with debarring the detainee from submitting evidence subsequently. The detainee is in no way worse-off, but the Adviser has started grinding away at an earlier stage. I cannot see that the accused would be any worse-off at all, and the whole thing would be more orderly and the evidence would come forward in a more accurate way.


The Adviser can start grinding away as soon as any evidence is put before him, and start considering the case without waiting for the representation—


With respect, he cannot start considering the case until it is referred to him.


It has to be referred to him, but once it has been he can start considering the case without waiting for representations to be made by the detainee.


Yes, that is true,


Therefore, there is no reason why he should have to make his representations within those seven days. If that period is extended to 14 days, it will not delay the proceedings. I should be happy to withdraw Amendment No. 5 if I could be given some undertaking with regard to Amendment 6.


What I still do not understand is this. Obviously, a man would not be arrested and thrown into prison unless there is some prima facie case against him. Evidence by the police is put before the Secretary of State, and he must decide whether there is a prima facie case. If he decides that there is, the man is arrested. Then it has to be referred to an Adviser for him to inquire into it and see whether or not the allegations are true. Except for the formal act of doing this, I do not see what the Secretary of State, whether the period is seven days or 14 days, is going to do—he has made an interim custody order—if there is no case for an inquiry. He makes it only if he is satisfied that there is a case for inquiry. If there is a case for inquiry, he ought to send it to the Adviser. This is a formal act and can be done in seven days just as well as in 14 days.


This is not the view of the people who have to do the job. It is extremely difficult to argue in this sort of case whether it should be 14 days or seven days. The important point is that the accused is not going to suffer by the failure of my noble friend's Amendments. I do not think he will be any better off if they are passed; but I cannot see that he will be any worse off if they are not As the people who are have to do this are asking for this period of time in both directions, and as the accused can continue to make representations after seven days, I do not see any substance in the argument.

On Question, Amendment negatived.


I beg to move Amendment No. 6. May I ask my noble friend whether he will give an absolutely unequivocal undertaking that although the Bill states: A person detained may, within seven days following the date on which he receives any such statement… send written representations…"; representations will be accepted if they are made within a week or two after that time? I beg to move.

Amendment moved—

Page 11, line 1, leave out ("seven") and insert ("fourteen").—(Lord Kilbracken.)


I have already given that undertaking and I repeat it.


In that case, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Lord BELSTEAD moved Amendment No. 7:

Page 11, line 5, after ("he") insert ("or his counsel or solicitor").

The noble Lord said: On Second Reading, I sought to put forward reservations that I had about new arrangements under Schedule 1 for the process of detention. The effect of this Amendment would be to allow the person who has been under an interim custody order to be legally represented when the case goes to an Adviser, if the accused so wishes. I think it is fair to remind the Government that the Committee of the noble and learned Lord, Lord Gardiner, recommended a division of three Advisers to hear these cases. I accept that the staffing of such divisions would not be possible in North Ireland today; but when one person only is looking into a case, I should have thought it would be fair for legal representation before the Adviser to be allowed.

The Government may say that this is an attempt to return to the adversarial form of hearing which we had before the Commissioners. I would argue that this is not so. It will be the Adviser, after all, who will be solely responsible for conducting the hearing. The effect of the Amendment will only be to allow the person being detained to request that his legal representative should be seen personally by the Adviser. Under paragraph 7(3) of this Schedule it will be entirely up to the Adviser as to whether he sees a legal representative alone or with his client, and it is clear from paragraph 7(2) that it is the Adviser who is conducting the hearing and no one else. This is a modest Amendment; it would allow a case to be fully deployed. It might well allow obscure points in the representations which have been made to be clarified. I beg to move.

10.51 p.m.


Your Lordships may notice that the next Amendment, No. 8, which stands in my name, is extremely similar to that of Lord Belstead's, except that in my Amendment it is the detainee and the counsel or solicitor who applies to appear before the Adviser, whereas in the noble Lord's Amendment it is the detainee or his solicitor. I felt that my wording was perhaps preferable, although obviously the detainee is going to appear before the Adviser. On Second Reading I raised the question of the right of the detainee to have a lawyer or solicitor appear with him when he appeared before the Adviser. I mentioned that my noble and learned friend Lord Gardiner had recommended that a solicitor should not be allowed so to appear, although in the Report he did not give any reason for holding this opinion. In the course of his speech on Second Reading, he gave that reason, and from reading the Official Report it appears that I misunderstood him. My noble and learned friend said in effect, if I may paraphrase, that when a detainee appeared before the Commissioners, the process was such a fiasco and such a total travesty of British law that the lawyer could do practically nothing for him, and members of the Bar felt that they were taking money under false pretences in representing him. That is an indictment of the procedure that was adopted although I would not quarrel with it as a description.

It seems to me that if a man is having to appear before a court, Commissioners or an Adviser, where the case against him is so severely prejudiced, as my noble and learned friend indicated it had been in the past, and as there seems to be little doubt there will be in the future, that so far from there being no need for him to have legal advisers, it was all the more essential for him to have them. He is allowed a legal adviser in preparing his representations, and this is put into the Bill. I should have thought, a fortiori, that he would need legal representation when he appeared before the Adviser. There is nothing in the Bill to prevent his solicitor or lawyer being one of those called by the Adviser to give evidence in front of him; but we have been informed in another place by the Secretary of State that it is not the intention that he should have any legal representation.

I have spoken in Belfast to men who have appeared before the Commissioners, often after having been detained for many months without being charged. They have been released and I have spoken to them. The first question I have asked is, "Has your solicitor been able to help you?" and they have sometimes said, "He did not need to say a word, because there was no evidence presented against me and I was released immediately". In every other case they have spoken enthusiastically of the help which members of the Bar have been able to give them.

There is an adage—I cannot quote it exactly, but it was certainly invented by a lawyer—to the effect that, The man who acts as his own advocate has a fool for a client. But that is precisely what the Government are forcing the detainee to do, if they insist that he appears on his own without anyone to direct him or to make representations on his behalf to the Advisers. Therefore, I would strongly support the Amendment which has been moved by the noble Lord, Lord Belstead.


I would not my-self have believed that I should ever live to see the day when I should be recommending that somebody was denied legal representation, because all my life I have regarded this as a fundamental civil liberty. But Northern Ireland is a very exceptional place. Detention without trial is no form of legal process at all. It is bare, naked power—the last resort of a Government to meet a condition of extreme terrorism which I think a Government must have in conditions of modern terrorism, though I think it continues, for as long as it lasts, to do harm in itself and the sooner it is ended the better.

What we have so far done, with the best of intentions, has been to append to the procedure before the Commissioners our usual kinds of legal safeguards, so far as we could. So the Commissioner appears to be a judge and there are barristers and solicitors there, so that it appears to be an adversial process—when really it is nothing of the kind. In the first place, the witnesses are mainly Army men and men from the Special Branch of the police, some of them giving evidence from behind screens, with voice scramblers being used; and, in the main, the evidence they give is based on what they are told by informers, who are given beer money, the rate for the job, or a large lump sum. They cannot be there, because of course they might be recognised, and then they would be dead.

One quite understands the reason for it. This is why it is hearsay evidence given by the Army or the police of what they have been told, sometimes at firsthand, sometimes at second-hand or even more remotely by these informers; and the main part of the evidence after that is heard in camera, where neither the man nor his solicitor is allowed at all. There is nothing they can say, and in some cases they cannot even be told what they are supposed to have done. For instance, a man is said to have killed a policeman in a particular place on a certain day, and there is only one person who knows he has done that, and that person is the informer. So the man cannot even be told what he is supposed to have done.

A man may be completely innocent yet have no chance whatever of avoiding a detention order. But, as I said, my whole Committee agreed that detention is something which is warrantable in conditions of terrorism, and, while many of us would have liked to recommend that the time had come when it should end, we felt that this was a responsibility which only a Government, knowing the security position in conditions which can change very quickly, could decide.

It is for this reason that I would myself, if I may address myself to all the remaining Amendments, while sympathising with what my noble friend Lord Kilbracken has said, think it would be a mistake to try to bring back again what we tried to do before, feeling "A man ought to have a right to have legal representation". That would again, perhaps, lead people generally in the public to think that this was some kind of trial. Indeed, many people in England at all events, I know, say, "It is quite wrong to talk about this as detention without trial. There is a full hearing before a Commissioner and representation by barristers and solicitors". But when one has been into what happens it is seen to be a farce. Nobody is to blame. The Commissioners have done their best. But I am glad, naturally, that the Government have accepted our recommendation that really this is an Executive act; and if it was a mistake to make it appear to have the ordinary legal appendages, it would be a mistake now, if I may respectfully say so, to try to bring them back again.

11.2 p.m.


I am most grateful to my noble and learned friend who has put my case better than I could have put it. The Government are absolutely satisfied that the Committee's recommendation on this heading is the right way to play the hand. My noble and learned friend has explained the difficulties. The man may be quite innocent. On the other hand, the knowledge that he is guilty may be within the Security Forces. These are the two things that have to be weighed up. Meanwhile, a very large number of people are being killed. What do we do? We have found it necessary until February of this year to imprison people, to detain people, under the ICO system which we all know well. The noble and learned Lord and his Committee accepted that, with the vicious killing which goes on in all directions, and has been going on for the last three to four years in Northern Ireland, one cannot just say "If we cannot prove a man guilty in court in the ordinary way because the witnesses are frightened of being killed"—and many of them are killed—"then we will let it go". We had to do something about it.

I personally support what was done by the previous Government in taking this action, which we have continued, reluctant though we are to do it and disagreeable though it is. I do not want to put too much on this. It is noticeable that my right honourable friend has not signed an ICO since. I think, February. In other words, he is doing his best to get out of this very difficult situation. Whether or not he will succeed, as he has hoped, by Christmas depends on the reaction of the people outside. But I am perfectly certain that my noble and learned friend's advice and his Committee's advice is right. This must be an Executive action by the Secretary of State based on the best evidence he has for the protection of the public for whom he is responsible. To dress it up as anything else, though it were done with the best possible motives—and I think at the time we all supported it—is to mislead and, to some extent, as the Report said in rather strong terms, to bring the law into disrepute.

That being so, Amendment No. 7 of the noble Lord, Lord Belstead, and Amendment No. 8 of the noble Lord, Lord Kilbracken—and I think No. 9 comes into the same category—I shall reject absolutely on these broad grounds. The noble and learned Lord said he was surprised that he should find himself on his feet defending a situation where people accused were not given counsel. I am surprised to find myself in that position—perhaps rather less surprised than the noble and learned Lord because we have slight differences here and there. But, generally speaking, it is an astonishing and dreadful situation to have to put before the House. But this is what we are confronted with, and anything else means death on a large scale for a great number of people, and I apologise for none of it. So I think I would ask the noble Lord, Lord Belstead, and the noble Lord, Lord Kilbracken, to withdraw those Amendments which go back on the noble and learned Lord's advice, that we should make this an Executive act and not an imitation of an adversarial trial.


My Amendment, Amendment No. 7, was designed to be a probing Amendment. I felt that we should not have a Committee stage without a very brief discussion of detention, even though it was mentioned at Second Reading. It is fortunate for us this evening that as well as the noble Lord, Lord Donaldson of Kingsbridge, the noble and learned Lord, Lord Gardiner, has spoken for the Government. If any Amendment were to be moved in earnest, I am also bound to say that the Amendment of the noble Lord, Lord Kilbracken, is very much better worded than mine.

I have one substantive point to make before I sit down. In putting down this Amendment I was motivated by the fact that it is curious that somebody should be invited by the text of the Bill to take legal advice in making their representations. Yet—and here, with respect, I differ from the noble Lord, Lord Kilbracken, in his reading of the Bill—it seems to me that paragraph 6(2)(b) read in conjunction with paragraph 7(3)(a) makes it quite clear that the Bill does not allow that legal representative to appear before the Adviser. That is as may be; certainly I am not going to press that particular point. The noble Lord, Lord Kilbracken, may do so in a moment. With great respect to him, I do not take quite the severe view that the noble and learned Lord, Lord Gardiner, took on the previous arrangements for detention.

Before I sit down, may I repeat what I said on Second Reading. We on these Benches are not going to play this two ways. If things get difficult in a few months' time we are, not going to come back to the noble Lord and say, "We took a rather different view of detention and we believe that you got it wrong". We think that the Government are doing the very best they can in extremely difficult circumstances, and I assure the noble Lord that through thick and thin we shall stand by the arrangements which have been made under Schedule 1 of this Bill.


With regard to paragraph 7(3)(a), (b) and (c), it seems to me that there is doubt about exactly what is meant by the words "any person" or "any assistant". As the noble Lord, Lord Belstead, read it, this would preclude the detainee's lawyer or solicitor from appearing at the same time as the detainee. It is worded in a very vague way: (3) No person shall be present except…

  1. (a) any person who for the time being is being seen by the Adviser."
I do not know what is meant by "being seen". Anybody who is in the room is being seen by the Adviser. Does it mean any one person, or can there be several persons? If it means only one person, then sub-paragraph (3)(c) which says any person who is present in the interests of security", must mean that there can be only one person present in the interests of security. If you have a very tough Provo detainee coming up, I should think you would need more than one person to be there in the interests of security, or else he would not perhaps like to be an Adviser. The paragraph does not state definitely or unequivocally whether the number of persons is limited to three—one person who is being seen by the Adviser, one assistant to the Adviser and one person who is present in the interests of security—or whether those present can be any person or any number of persons who come into those categories.

Amendment, by leave, withdrawn.

Lord KILBRACKEN moved Amendment No. 10:

Page 11, line 22, at end insert—

("( ) The Adviser shall inform the person detained of the substance of any such information, in so far as the needs of public security and the safety of persons permit.")

The noble Lord said: As I studied paragraph 7 of Schedule 1, the more I looked at it the less I liked it. I was comparing it, of course, with the provisions in paragraph 14 of Schedule 1 to the principal Act. It seemed to me that what the Bill tells us about the way in which the Adviser will consider these cases is extremely unsatisfactory. After all, all we are told in paragraph 7 is that when a case is referred to the Adviser he shall consider it. He shall then have regard to any information which is made available to or obtained by him and no person shall be present except the person who is being seen by the Adviser, any assistant to the Adviser, or any person who is present in the interests of security. That is absolutely all we know about what is going to happen when the detainees appear before these very nearly omnipotent Advisers.

When that is compared with the existing procedure in paragraph 14 of the principal Act we find, for instance, that the respondent (as the detainee is there called) shall be present on the hearing of a reference. That is not allowed any longer, we are given to understand, except when he is being seen by the Adviser. The respondent shall be entitled to give and adduce evidence and may make representations to the Commissioner, whether orally or in writing, and may be represented by counsel or solicitor, and we are now informed that he will not be allowed to be represented by counsel or solicitor when he appears before the Adviser. The Commissioner under the principal Act may receive oral evidence notwithstanding that the evidence would be inadmissible in a court of law. That is something that I never agreed with, and now that provision has been removed from the Statute Book. I assume this means that in future it will not be possible for the Adviser to receive evidence notwithstanding that it would be admissible in a court of law. We are not given any information on these subjects in the new Bill.

The Commissioner can at present question any person, including the respondent, and cause inquiries to be made in relation to any matter. There is no reference to that in the new Bill. The Commissioner at present may require any person to give evidence on oath or by affirmation, which the Adviser is not entitled to do. Furthermore, the Commissioner may by summons require any person to return as a witness and may require any person answering a question to produce any documents in his custody. An Adviser does not have any of those rights—or at least they are not stated in the Bill. Another important point, of course, is that the detainee under the new legislation has no right to appeal against a decision of the Adviser as he had against the decision of the Commissioner. That is a very severe curtailment of his rights.

I did not table Amendments on any of those subjects because I did not want to be talking all night, as I seem to be doing, but I consider the substance of Amendment No. 10 to be of great importance. It is that under the existing legislation the person detailed—the respondent, as he was called—was present through the whole hearing before the Commissioners so long as he behaved himself and unless it was thought in the interests of security and the safety of persons that he should be removed; and if it was so thought then he was removed but he had to be informed of what had gone on in his absence. In the present Bill before your Lordships, there is nothing on this point either, as there was in the old Schedule 1 which is now going by the board. It is not stated that when a detainee comes before the Adviser he is to be given any information at all about the evidence that has been given against him. My Amendment would insert at page 11, line 22, a new sub-paragraph which is in precisely the same language as that used in Schedule 1 to the principal Act, to the effect that the Adviser must inform the person detained of the substance of information that has been given to the Adviser by other witnesses. Then, in the same phrase as is used in the principal Act, it states: in so far as the needs of public security and the safety of persons permit. I should hope that, in any case, the Adviser would give that information to a detainee who came before him. It is so important that he should know the details of the allegations made against him, that I think that sub-paragraph should be in the Bill. I beg to move.


My noble friend Lord Kilbracken seems to have missed paragraph 6(1) of Schedule 1 which reads: As soon as possible after a case is referred to an Adviser under paragraph 5 above, the person detained shall be served with a statement in writing as to the nature of the terrorist activities of which he is suspected. This seems to meet the main point of the Amendment. The other point that my noble friend made about the Commissioner goes back into the old system, which we are trying to get away from. The Commissioner can detain a man; the Adviser cannot.

The Commissioner was very properly hedged about by a number of legal restrictions. The Adviser is left as free as possible. So far as is possible, we have not written detailed procedures into this Bill. The Adviser is there to find out the truth. He is left with discretion, and the final decision will be taken by the Secretary of State, who will do so in the light of all the material available to him. Clearly, there can be no appeal against this. To whom could it be—the Queen? on evidence provided by the Secretary of State? It is not acceptable.


Is that not a rhetorical question? The noble Lord will recall that there was, and still is, an appeals tribunal set up by the principal Act, which can still continue to consider appeals.


The appeals tribunal can be only on a legal or semi-legal basis, and the whole attempt here was to get away from the legal basis. It is late. I do not think I can make things any clearer to the noble Lord than by saying we have accepted in its entirety, with one or two detailed exceptions, the Gardiner approach to this matter. My noble friend is suggesting we go back on this, and I am not prepared to do so.


Confining myself solely to Amendment No. 10, my noble friend said he thought I must have missed what is written in paragraph 6(1) of Schedule 1, which simply states that the person detained shall be served with a statement of the terrorist activities with which he is suspected. Of course I have not missed it, because I have already been referring to it in some detail tonight. My Amendment does not relate to that at all. My Amendment relates to the information which, under paragraph 7(2), is made available to or obtained by the Adviser. That is something quite different. These are people who are coming up before the Adviser and giving him certain information about the offences alleged against the suspect. I am saying that the detainee must be informed in each case of the information so given, in order that he can attempt to rebut it or comment on it. It has nothing to do with paragraph 6(1).

I know that we are trying to put it across that these detainees are going to be appearing in a very informal atmosphere and one that does not pretend to be a court of law, but on the result of what happens before that court depends whether they are held in detention for a year or two without having appeared before a court of law. It is a matter of great importance. Since my noble friend does not refer at all to the point in question, which is nothing to do with the statement in writing as to the nature of the terrorist activities but has to do with the evidence given to the Advisers, I would not feel inclined to withdraw the Amendment.

On Question, Amendment negatived.

11.21 p.m.

Lord KILBRACKEN moved Amendment No. 11:

Page 12, line 27, at end insert ("or the person detained shall be discharged unconditionally").

The noble Lord said: In paragraph 9(1) of the Schedule it is stated that the Secretary of State may at any time, in the case of someone who is already being held under a detention order, refer the case to an Adviser for review. If he is requested to do so by the detainee, who is entitled to make that request after one year, then he shall do so within 14 days, beginning with the receipt of the request. I am very glad to see that he is supposed to do so within 14 days, but there is absolutely nothing in the Bill to say what will happen if he does not so refer it within 14 days. So far as I can see, there is absolutely no sanction whatever. I therefore propose to insert at the end of that line words having the effect that if it is not so referred within that period, "the person detained shall be discharged unconditionally". I beg to move.


The purpose of this Amendment is to provide a sanction against the Secretary of State if he fails to refer to an Adviser within 14 days the case of a person held under a detention order when requested to do so within the terms of sub-paragraph (2). Under that provision the Secretary of State must refer the case if requested in writing by the detainee who has been held for 12 months under a detention order or six months from the date when the detainee was notified that a previous application was unsuccessful. The sanction envisaged by the Amendment is that the person detained shall be discharged unconditionally. Such a provision is quite unnecessary, since a detainee, in the unlikely event of his case not being referred within the 14 days—in other words, in the unlikely event of the Secretary of State not doing what he is obliged to do under the Bill—would have the normal remedy through the courts. I certainly could not accept this Amendment.


Would my noble friend explain what he means by "the normal remedy through the courts"?


I think it is technically called a writ of mandamus.


Am I right in understanding that if within 14 days of the request being made the case has not been referred to an Adviser, he would be able to bring a writ of mandamus action, if that is the correct word, and he would thereby have redress similar to that which I am proposing in my Amendment?


I think the redress would be that he would force the Secretary of State to consider his case.


Can I take it that I am assured that this action will be and must he taken within the 14 days set out in the Bill?




In that case, I beg leave to withdraw the Amendment. Amendment, by leave, withdrawn.

11.46 p.m.

Lord KILBRACKEN moved Amendment No. 12:

Page 12, line 45, at end insert— ( ) If lie should fail so to notify him within three months from the receipt of the request, the person detained shall be discharged unconditionally.

The noble Lord said: This Amendment again seeks to impose a time limit within which action has to be taken once a man has applied for his case to be reconsidered. There are time limits already in the Bill; for example, if a person applies for his case to be reconsidered, the case has to be referred within 14 days to an Adviser. But there is nothing in the Bill to state how long can elapse before the Secretary of State has to decide whether or not the man should be released. Incidentally, the wording in the Bill is again rather strange because whereas the Bill says: …the Secretary of State shall, after receiving the report of the Adviser, reconsider the case of the person to whom it relates and, if he decided not to release that person, shall notify him of his decision", it does not say, as is the case in the principal Act, what happens if he decides to release him. Presumably he just releases him. Is that right?


Of course.


But that is not so stated, whereas if one looks at the corresponding passage in the principal Act it says that if he decides to release him, then the man "shall be released." However, that is not my main point. The real point is that although the case may have come up for consideration, an unlimited period could go by after the case has been heard before the person is released. There should be a limit, and in my view three months is a reasonable period.


If one of Her Majesty's Secretaries of State is required by Statute to undertake a particular course of action, it is reasonable to assume that he will indeed undertake that action. In this case, the Amendment is directed towards an action that does not affect the crucial matter of the determination of whether a person has been concerned in terrorism. That has already been decided. It is an action that is required to assure the detainee that he has not been overlooked. In fact, of course, the Secretary of State keeps all detainees continually under review to ensure that their continued detention is necessary for the protection of the public, and I think his record over the last eight months makes this perfectly clear. If, for some extraordinary circumstance—and mistakes can of course happen—the Secretary of State does not meet his obligation to inform the detainee of the result of the review, the matter can be taken up through the courts; there is no need for the measure to provide for the situation when a Secretary of State does not abide by the law. The law is there and he has to abide by it. If any individual thinks he is not abiding by it, he has recourse to the courts.


I really do not follow that argument at all. Of course we expect the Secretary of State to do what he is bound to do, but paragraph 9(5) states merely that the Secretary of State, after receiving the report of the Adviser, shall reconsider the case of the person to whom it relates and, if he decides not to release that person, shall notify him of his decision. I am sure that the Secretary of State will fulfil his legal obligation by doing so, but what I am saying is that he should do so within a specified period of the request being made by the person who is detained, just as there is a specified period when he is first arrested between the issue of the ICO and the detention order which must not be exceeded. I simply do not feel that my noble friend has met my point at all.


I believe that paragraph 9(1) deals with this. It reads: The Secretary of State may at any time refer the case of a person detained under a detention order to an Adviser and, if so requested in writing in accordance with subparagraph (2) below by a person so detained shall do so within fourteen days… I feel that that covers the position.


I agree that within 14 days the Secretary of State has to refer the case to an Adviser. He does so. He receives a request from the person who is detained and within two weeks he has to refer the case to an Adviser. But my point is that, after that, there is absolutely no limit laid down anywhere as to when the Adviser has to hear the case, when the Adviser has to submit his account of the case to the Secretary of State or when the latter has to decide whether the man is to be released or held in detention. I am saying that there should be a limit between the time when the evidence is received and when the Secretary of State notifies the detainee as to his decision.


I cannot give my noble friend the exact answer he want now, but it is my impression that there is a timetable which is laid down by which, as soon as the Adviser has the case referred to him, the wheels start turning, and that there are periods within which this has to be done. I should like to write to my noble friend about this.


This is the sort of difficult situation we get into when we rush a very important Bill through all but two of its stages at a very late hour, when practically no one is present and when matters like this cannot be given the consideration and reconsideration that is such an important part of Parliamentary procedure. We can only go by what is in the Bill and there is nothing there to indicate that what my noble friend says is the case. There it is. There are paragraphs 9 and 10 which relate to detainees whose case is reconsidered after a period of being detained for one year. The only time limit which is laid down is the 14 days within which the Secretary of State has to notify the Adviser. There is absolutely nothing to limit the time before the Adviser has to consider the case or before the Secretary of State has to give his decision. There is absolutely nothing in the Bill which says that the Adviser cannot take six months or a year before hearing the case, nor that the Secretary of State cannot wait six months or a year before considering the Adviser's report and announcing his decision.

I am always delighted to receive letters from my noble friend. He writes very charming and informative letters to me. But this is an important matter, which should be in the Bill. It is merely as a matter of form that I say that in view of what my noble friend has said I cannot withdraw my Amendment.


Just before my noble friend does not withdraw his Amendment—if that is the correct way to put it—I wish to point out that what we have said in the last two cases applies here. If a detainee demands to be submitted to an Adviser, this has to be done within 14 days. If nothing happens, he is once again open to use the courts.


I am sorry to insist on this, but it is not within 14 days that he has to go before the Adviser. It is within 14 days that the Secretary of State must refer the case to the Adviser. But this does not mean that the detainee must see the Adviser within 14 days. He may not see the Adviser within 14 months. There is absolutely nothing to that effect in the Bill.

On Question, Amendment negatived.

Schedule 1 agreed to.

Remaining Schedules agreed to.

House resumed: Bill reported without amendment; Report received

Then, Standing Order No. 44 having been Suspended (pursuant to Resolution):

11.37 p.m.


My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 33.—(Lord Donaldson of Kingsbridge.)


My Lords, I wish to raise one or two small points, one of which is of major importance to Northern Ireland at the moment The Bill and the Act it amends contain the legislative intention of this Parliament to pursue the IRA terrorists to the bitter end and to defeat them. During the Second Reading of the Bill, I appealed to the Government to be consistent in their approach to this problem, and in trying to shorten my speech I failed to impress on the Government that in point of fact I was referring to the total pursuit of the policy of the Government over the past years. Of course prisoners must be released when the security situation in their particular cases allows them to be released, and that applies to detainees as well.

But during the last five years there have been tremendous changes in Government policy. During almost every one of those changes, to my mind, the terrorists have had cause to wonder whether Parliamentary democracy has the determination to defeat them. We had arguments about whether or not we talk to the terrorists. We have had that twice already, and that is an inconsistency. I believe that once this Bill is passed we should pursue a completely consistent policy. At present there is a great fuss in Northern Ireland over the failure of the forces to arrest Seamus Twomey. Now we are putting in new scheduled offences, and it is very important, in order to establish without doubt the determination of the Government that they will pursue this relentlessly and without change, that we should be convinced that the Govern- ment really did try, and are trying, to arrest known IRA terrorists at this time.

It seems to me that the Government might have felt that they were embarrassed if they got leaders like Twomey. After we pass this Bill tonight and it becomes an Act, we shall create many more scheduled offences which could easily produce embarrassment. Therefore, it is of vital importance that the Government make it absolutely clear that they are determined to catch any IRA leader, especially Mr. Seamus Twomey, who is a man of absolutely enormous evil, wanted in both North and South.

May I assure the Government that if they did not want to catch or hold him in the North, the Garda did; for they have one almighty charge that will stick with him. I feel that at this moment when we are passing a Bill which will increase scheduled offences, which is going to require tremendous determination, it is very important that this matter should be cleared up; because it seems to me that it is just as illegal to tell troops not to arrest somebody they believe to be committing or has committed an offence, as it is to order a soldier to commit an illegal act. I wonder whether the Government can give us any assurance now or later. I wish success to this Bill because I believe that without it we cannot hope to convince the terrorists—and I am referring to all terrorists—of their inevitable and complete defeat.


My Lords, I will only say that the Secretary of State has declared his intention again and again to pursue criminals, irrespective of any releases that may be going on. I am not briefed on the details of the case; but if the noble Viscount likes to put down a Question, he can have an Answer.

Viscount BROOKEBOROUGH: My Lords, in October?

On Question, Bill read 3a and passed.