NORTHERN IRELAND (EMERGENCY PROVISIONS) (AMENDMENT) BILL

HL Deb 29 July 1975 vol 363 cc893-908

3.1 p.m.

The PARLIAMENTARY UNDERSECRETARY of STATE, NORTHERN IRELAND OFFICE (Lord Donaldson of Kingsbridge)

My Lords, I beg to move that the Northern Ireland (Emergency Provisions) (Amendment) Bill be read a second time. This is a most important Bill affecting the liberty of the subject, and noble Lords must bear with me if I discuss it rather fully. It is in effect the Government's implementation of the Report of the Committee chaired by my noble and learned friend Lord Gardiner, to whom I paid tribute in this House on behalf of the Government for the very remarkable performance which he and his Committee put up for us.

The Committee's recommendations are far-reaching and most of them are embodied in the Bill before the House. I think the most helpful way I can introduce this Bill is to dwell on the omissions or variations from the Gardiner proposals, so that we shall discuss the Report as a whole rather than only the accepted parts that appear in the Bill.

Since the Committee completed its work, the Provisional IRA have declared a ceasefire in Northern Ireland. Although Provisional IRA violence has not ceased completely, it has declined considerably and this has contributed to a substantial fall in the level of violence. For example, the average number of explosions per month has fallen from 57 in 1974 to 26 in the first half of this year. Shooting incidents on the same basis have fallen from 267 to 136. In these circumstances, your Lordships' House may ask why it is necessary to bring this Bill, containing emergency powers, before them. However, the fact that there were 106 deaths and 822 shooting incidents (including 83 punishment shootings) in the first half of this year justifies the need, I submit, for emergency powers to continue in force for the time being. We must also bear in mind, moreover, that there could be an upsurge of violence. We hope very much that this will not occur, but it would be reckless not to recognise the possibility and take appropriate steps. Some of the provisions of this Bill may be only contingency provisions; but we cannot risk being without them.

Among the most important parts of the Bill are the provisions for detention. My noble and learned friend's Committee reported We would like to be able to recommend that the time has come to abolish detention but the present level of violence, the risks of increased violence, and the difficulty of predicting events even a few months ahead, make it impossible for us to put forward a precise recommendation on the time". My right honourable friend the Secretary of State has made it clear that he wants an end to detention. As he said recently in another place, I cannot commit myself at this stage to a specific date but I hope that the situation will progress sufficiently to enable all the detainees to be out by Christmas". This statement produced a storm of contemptuous criticism from some Loyalist activist quarters, suggesting that we are playing into the hands of the IRA, and a bitter denunciation from the theorists of Sinn Fein that we are using detainees as hostages and spinning out their release intolerably. In fact I think everyone in the minority section and very many in the majority section of the community would agree with my noble and learned friend in his Committee's wish to see detention ended, and also that this is a decision which must be related to circumstances and left to the Secretary of State. I think most people who are honest with themselves would agree that he has gone just about as fast as he reasonably could.

The situation has improved, but an end to detention will and must depend upon progress towards the end of terrorism. But until it is permanently ended the powers of detention must be retained. The Secretary of State hopes not to be obliged to make further ICO's, but he will not hesitate to protect the public by using such powers if this seems to be right in the face of violence. Some changes need to be made in the existing provisions, as my noble and learned friend has pointed out in his Report, and I will come on to these a little later.

Secondly, in paragraphs 107 and 108 of its Report, the Gardiner Committee highlighted the unfortunate consequences and side effects which followed the introduction by administrative means of special category status to certain groups of convicted prisoners. Though I understand very well the circumstances in which it was introduced, I have never met anybody, except the prisoners themselves and their friends and relations, who approves of the so-called Special Category status. It is impossible clearly and legally to define, and hence is arbitrary and open to wide abuse in its application. It is greatly resented by the ordinary criminals and many crimes committed for the most sordid self-interest are subsequently coated with the veneer of so-called political motivation, so that some gullible members of the public are induced to regard the criminals as "our boys", when they are in reality nothing more than the perpetrators of callous crimes motivated only by greed or vanity.

The problem is that it is not easy to get rid of something which is so highly valued by the offender and his friends. Northern Ireland has roughly three times as many people in prison, in proportion to its population, as any other European count-try. In consequence there is a much larger number of citizens outside the prison walls who actively oppose us for shutting up their friends and relations despite the frightful nature of many of the crimes committed. Another consequence is that those who support crimes see these prisoners as propaganda material. We must hope to reach a stage, as my noble and learned friend suggested in his report, when we can say that Special Category status will not be given to men convicted after a certain date. I hope the Secretary of State will have something to say on this subject in due course.

This thorny problem of Special Category has been a major obstacle to the introduction of a parole scheme on Great Britain lines. Several times the Secretary of State has said he wished to introduce such a scheme, but so far it has foundered on the snags of Special Category. However, much progress has now been made in working out a practical scheme and I am hopeful for the future. The absence of some such scheme is a real hardship for ordinary prisoners in the Province, who may have all the conditions requisite for parole in Great Britain set in their favour—a faithful wife, a guaranteed job, a good prison record—yet instead of being considered for parole after a third of their sentence, they have to sweat it out till the end, less the statutory third remission for good conduct. However, some useful changes are on the way. My right honourable friend has already announced in another place that legal measures now under consideration include new alternatives to imprisonment, including community service orders, which have been so successful, and deferred sentences.

This brings me to the Committee's concern about the availability of prison accommodation in paragraphs 110 to 113 of its Report. My noble and learned friend Lord Gardiner raised the matter again during the debate in the House on 26th June. Here I think I can report a considerable degree of urgency on our part. The prison building programme which was announced last November is going well and the public inquiry into the siting of a new prison at Maghaberry has now finished. We now await the inspector's report, but in the meantime work proceeds at the Maze with the construction of new cell block accommodation, and by November 200 individual cells will be ready, while by October of next year a further 300 will be completed. Work goes ahead on various sites on the provision of new accommodation for 40 women prisoners by January 1976, as well as 50 borstal trainees and 300 young offenders by December 1976. The new kitchen at the Maze was completed in March and the alterations planned for the hospital will be finished by March of next year. Meanwhile all the 18 compounds which were wrecked in the October riots have been, or are being, brought up to a very decent standard. The last phase will be completed by mid-September.

I think this has been a remarkable accomplishment, as it is in addition to the new building works I have already referred to. My noble and learned friend said in his speech a week or two ago that we had not turned a sod towards the new prison programme. If he was referring to Maghaberry he was right, because we are still awaiting the inspector's report, though an immense amount of work has gone into the plans. But I hope that what I have just said will convince him that a good many other sods have been turned and, in my opinion, great credit is due to the people concerned who have displayed commendable drive and energy. In addition the Committee on Young Offenders, under my chairmanship, has been urgently considering the use of accommodation for young offenders together with the related question of training and the procedures for release. A draft of our Report is already with the Secretary of State.

I should like now to turn to the clauses in the Bill. I have spent so long on these vitally important but most general subjects that I propose to run through the clauses quite quickly, pausing only to explain any differences between them and the Gardiner proposals. Clause 1 is a permanent addition to the Statute Law of Northern Ireland and brings the law on the admission of written statements into line with the remainder of the United Kingdom. It is a desirable reform in any circumstances, and will go some way to meet the problem mentioned in paragraph 45 of the Report, which mentions the serious cost to the public, and the great inconvenience to the Army, of bringing soldiers back to Northern Ireland to give evidence for the prosecution.

Clause 2 of the Bill enables the court, at the initial hearing of a scheduled offence, to decide whether to hold a preliminary investigation or a preliminary inquiry. Clause 3 enables a court to try scheduled and non-scheduled offences together, subject to the existing law governing the joinder and severance of courts. We have not given the accused a right of veto over the mode of his trial. We believe that the trial judge should determine any question regarding the indictment, taking into account what the parties have to say.

Clause 4 gives a wider range of judges the power to grant bail to persons charged with scheduled offences and completely removes the restrictions on the granting of bail to persons charged with scheduled offences to be tried summarily, or to persons convicted of a scheduled offence, as recommended by the Committee. Clause 5 is in line with the spirit of paragraph 40 of the Committee's Report, in that it enables bail applicants to obtain legal aid more simply.

Clause 6 has the effect of removing from the 1973 Act any reference to the Belfast Recorder's Court. It is administratively more convenient to list all scheduled offences for trial at the Belfast City Commission where the Recorder, like any county court judge, may, at the request of the Lord Chief Justice, sit and act as a judge of the City Commission for the trial of a scheduled offence. Clause 7 repeals Section 5 of the 1973 Act, which allowed written statements to be admitted as evidence in the trial of scheduled offences where the witness was unable or unfit to attend the trial or could not be found. This provision has not been used, and accordingly the Government have decided it should no longer remain.

Clause 8 gives effect to the recommendation in paragraph 57(a) of the Report that the special provisions on evidence contained in Part 1 of the 1973 Act should no longer apply to summary trials of scheduled offences. Clause 9 repeals Schedule 1 to the 1973 Act and provides for the new detention arrangements contained in Schedule 1 to this Bill.

Noble Lords are probably aware that transmitters are frequently used in Northern Ireland to detonate explosives and to set up ambushes of the Security Forces. Clause 11 introduces a power to search for and seize transmitters which, it is suspected, have been or will be used illegally. Clause 12 makes it an offence to recruit others to join a proscribed organisation or to carry out the orders of a member of such an organisation.

Clause 13 extends the provisions of Section 20 of the 1973 Act, which at present makes it an offence to collect information about the Security Forces which is likely to be useful to terrorists, and to cover persons holding judicial office, court officers and prison officers. Secondly, the clause makes it an offence to collect any information likely to be useful in planning or carrying out any act of violence.

Clause 14 provides for the repeal of the penalty of 18 months imprisonment for riotous behaviour imposed by Section 22 of the 1973 Act. This offence will now, as recommended by the Committee, be dealt with summarily. Clause 15 makes it an offence to train others in the use of arms and explosives or to receive such training. At present there is no way of bringing to justice a person who instructs others in the theory of making or using bombs or weapons, but who does not actually construct or handle the explosives or weapons. Clause 16 implements the recommendation of the Committee that it should be an offence to wear a hood or mask in a public place or in the vicinity of a dwellinghouse.

My Lords, the remaining clauses are purely technical. There is, however, one point that should be expanded upon, and this is in Clauses 21 and 22. The use of emergency provisions is distasteful and my right honourable friend the Secretary of State felt that there should be a provision in the Bill requiring him to return to Parliament at no greater interval than six months to request the approval for renewal of any, or all, of these provisions. Therefore, Clauses 21 and 22 provide, first, that the temporary provisions of this Bill should lapse at the same time as the similar provisions in the Northern Ireland (Emergency Provisions) Act 1973 and the Northern Ireland (Young Persons) Act 1974; and secondly, that these provisions can be renewed by Parliament, thereafter, for a maximum period of only six months.

I now move to the provisions of Schedule 1 which, with Clause 9, repeals Schedule 1 to the principal Act and provides instead the completely new procedure for detention. In paragraph 159 of the Committee's Report, which contains one of its most important recommendations, it is argued that because the deprivation of the liberty of an individual by extra-judicial process is a very serious decision, the responsibility should be taken by the Secretary of State himself. This has been considered very carefully and your Lordships will see that my right honourable friend has accepted the recommendation with all the grave responsibility that this entails. This means that the commissioners and appeal tribunals introduced by the 1973 Act will cease to hold office subject to certain transitional provisions. The Committee argued that because the commissioners' hearings were similar to the ordinary judicial process, this process is being brought into contempt in Northern Ireland. Moreover the Committee, quite rightly, criticised the delays which in the past have crept into the detention procedure. The Government have accepted these criticisms. However, they in no way reflect on the commissioners, and I should like today to add my own appreciation to that already expressed by my right honourable friend the Secretary of State to the commissioners for the way in which they have carried out their difficult task.

The new advisory system will work as follows. Where it appears to the Secretary of State that there are grounds for suspecting that a person has been concerned in terrorism, he may make an interim custody order as at present. Within 14 days he must refer the case to an Adviser, or the order will cease to have effect. Where a case is referred to an Adviser, he—the Adviser—must consider it and report to the Secretary of State whether or not he considers the person detained has been concerned in terrorist activities, and also whether the detention of that person is necessary for the protection of the public. When the Secretary of State receives this report he must consider these two criteria and if he is satisfied that both are met he may make a detention order. If he is not satisfied he must direct the person's release. Noble Lords will note that the Schedule provides that a single Adviser shall consider each case. This is a departure from the Committee's recommendation that a detention advisory board should be created with membership of 7 holders of judicial office, 3 of whom should constitute a division for investigating a case. After much thought and consultation it was decided that it is not practicable to provide this number of judges at the present time for what could be, in the event of an outbreak of violence, a full-time task. Advisers will therefore sit alone and, like the commissioners, will have held judicial office in the United Kingdom or be barristers, advocates or solicitors of not less than 10 years' standing.

A most important aspect of the new arrangements is the introduction of time limits. The Gardiner Committee recommended that there should be limits of seven days for the service of the statement of allegations, 21 days for the submission of the report to the Secretary of State and seven days for the Secretary of State's decision, making five weeks overall. The Bill introduces a simpler system which seeks to provide better safeguards for the detainees' interests. This procedure will take seven weeks, and if a detention order is not made by the Secretary of State within seven weeks of the date of the interim custody order, the person must be released. Paragraph 8, however, also provides for three extensions of one week each, should exceptional circumstances arise to prevent an Adviser from completing his report on time. An Adviser, for example, might fall ill before completing his report; and it is therefore necessary for some contingency measure to be available to deal with this sort of situation. I believe we are meeting the spirit of the Committee's recommendation, since, by introducing the overall limit, persons held on interim custody orders will have their cases determined inside a much shorter period than has been possible under the commissioners' system.

My Lords, we come to the subject of release. The Secretary of State may exercise his unrestricted power to release at any time. He may also refer a case to an Adviser for an opinion as to whether the person's continued detention is necessary for the protection of the public. In addition, the detainee will be able to request the Secretary of State to refer his case to an Adviser after one year has elapsed since the making of the order or six months from the notification that the previous request has not resulted in his release.

As the Secretary of State has pointed out on a number of occasions, there has been a reduction in violence in Northern Ireland and there has been a change in the nature of violence. We recognise the heartfelt desire of all parts of the community for peace and have responded to the reduced activity of the Provisional IRA by a lower profile by the Army. At the same time, the police have reacted sharply to the outbreak of violent gangsterism and are demonstrating their ability to deal with it. So far this year, 72 persons have been charged with murder, 59 with attempted murder and 255 with firearms offences. In all, 667 persons have been charged with scheduled offences, and it is a matter of great satisfaction that the police are increasingly successful in bringing criminals to justice through the courts. It is essential, however, that the police and the Army have appropriate powers to deal with the present situation and to cope with any worsening of the situation. It is too soon to drop our guard, but there is hope that the present progress will be maintained and that we shall be able to remove emergency provisions from the Statute Book.

My Lords, the Report is a very wide-ranging document, and I do not pretend in this already overlong speech to have dealt with all its aspects. But I hope to have said enough to convince my noble and learned friend and his colleagues that the Government have treated the Report with the utmost seriousness, and in the Bill now before your Lordships have implemented the greater part of the Committee's recommendations. I beg to move.

Moved, That the Bill be now read 2^a.—(Lord Donaldson of Kingsbridge.)

3.24 p.m.

Lord BELSTEAD

My Lords, the explanation which the noble Lord has given of this Bill has been particularly useful this afternoon because the Emergency Provisions Act 1973 has now been in operation for exactly two years and, clearly, an Act which was designed to meet the changing emergency situation in Northern Ireland is bound after such length of time to need some revision. This Bill which is based, as the noble Lord said, on the very thorough Report of the Commitee which sat under the noble and learned Lord, Lord Gardiner, makes alterations in the Emergency Provisions and changes the detention procedure. I think it is right to bear in mind two points which the noble and learned Lord's Committee made in the first chapter of their Report. First, in that chapter the Committee exposed the bogus claim that terrorist organisations are freedom fighters. In a memorable passage the Commitee said that terrorists, can offer no gifts to the people of Northern Ireland by way of greater freedom, security or prosperity which the people cannot now attain by legal or democratic means. The second point that I picked and which is contained in that chapter showed that the same argument applies to those who engage in subversion and that to counter those who seek to undermine Government authority, the Government themselves must act with speed in order to sustain their authority, and the general public must recognise that it is they who are the real targets and who ultimately could be the victims. It is fair to claim that it is for those reasons, among others, that the 1973 Act, based on the Report of the noble and learned Lord, Lord Diplock, was passed into law. The Act established single judge courts which the Gardiner Committee found had worked well and more speedily than jury courts would have done—and this is an important consideration at a time when the Royal Ulster Constabulary are succeeding in bringing an increasing number of prosecutions of alleged terrorists before the courts.

This Bill is not concerned with the form of trial for scheduled offences, but as the noble Lord, Lord Donaldson, explained, the first eight clauses make some alterations to the trial procedures. Perhaps I should ask for the indulgence of the House in speaking in this debate as someone who is not a lawyer. The only point that I would make on the subject matter of this first area of the Bill is to say that I welcome the Attorney General's acceptance in another place of Paragraph 62 of the Gardiner Report clarifying the Attorney General's power to certify out any offences when he considers this is in the best interests of justice. It is very much of concern to the Security Forces and the RUC in particular that the interpretation of the Attorney General's power has seemed to require a policeman or a soldier to appear always before a single judge court if the charge falls within the list of scheduled offences. I must say that I welcome the Attorney General's clarification of his discretion in this respect.

My Lords, Clauses 10 to 16 introduce some new offences which the noble Lord explained and makes some alterations. I think it right to bear in mind that in the main this area of the Bill strengthens the powers of the Security Forces. I hope that it will not surprise the House if I say that, even in the present situation when we have, at least nominally, a cease-fire. I still think that this is right. Although, as the noble Lord told us, the ceasefire has led to a considerable reduction in the general level of violence and, in particular, in the use of explosives, there is no getting away from it that the high number of sectarian murders this year shows that the determination of the hard-core terrorists remains. There is no evidence that I am aware of that, if the convention were to reach agreement on a constitutional settlement, this might not be the signal for renewed violence from those whose interests would be threatened by an agreed political future for the province.

My Lords, it is mainly for these reasons that I support Clause 11 which introduces a new power to search for and seize radio transmitters. Your Lordships will remember that only 10 clays ago there was the case of the four soldiers who were killed at Forkhill in South Armagh. This was caused by an explosion which was probably set off by the use of a radio transmitter. I welcome also Clause 13, which extends the offence of collecting information about the Security Forces which could be useful to terrorists, to information about persons who hold judicial office and those who are court or prison officers. Recently in the debates on the Fair Employment (Northern Ireland) Bill, my noble friend Lord Brookeborough described how people in Northern Ireland can be "planted" in employment in order to watch the movements of an employer. The Judiciary in Northern Ireland are at risk, as past events tragically have proved, and this clause will enable the law to prevent spying in order to endanger the lives of those whose occupations place them and their families in more than normal personal danger.

I also welcome Clauses 12 and 15 which make it an offence to recruit others to an illegal organisation, and to instruct in the making and the use of firearms and explosives. On the first of these two clauses, the noble Lord, Lord Donaldson of Kingsbridge, will be aware from the proceedings in another place that concern was expressed that Clause 12 may not cover those who express support for terrorism in public and, by their influence, either encourage or threaten others to support illegal organisations. This is no academic point. To persuade people, especially young people, to become involved in terrorism, especially if it is done by the use of threats, is both wicked and subversive. If the court decides that such a case does not fall within Clause 12, I am no lawyer but presumably the only other charge which could have been brought would have been that of conspiracy, which the Gardiner Committee pointed out is a crime involving difficult questions of law, and which it is difficult to prove. Therefore at this stage may I simply express concern that those who stir up trouble and encourage or threaten others to violence may, as I understand it, still not be within the scope of this legislation.

The major alteration which this Bill makes, however, is for the Secretary of State to become solely responsible for a decision to detain a person who is suspected of terrorism. When Direct Rule began in 1972, there was, as your Lordships will remember, a system of internment whereby an executive decision of the Government of Northern Ireland could deprive a person of liberty. This was replaced by the Detention of Terrorists Order of the same year which virtually was reprinted as Schedule 1 of the 1973 Act, whereby if the Secretary of State decided, on information received, that an interim custody order ought to be signed, then the case went before a commissioner for determination. May I join the noble Lord in a tribute to commissioners, not all of whom were young men by any means, who carried out long hours of travel and work in what could have been a certain amount of danger to themselves, and have done so until now when their work is to be finished.

The Committee of the noble and learned Lord explains the drawbacks to this system; the necessary concealment of identities; the curtailment of the process of cross-examination; the admission of hearsay evidence and, in the end, a lower standard of proof. If this system had been claimed as being a full trial with the normal procedures of the law, I agree that such a claim would have been pure hypocrisy. But as the Report of the noble and learned Lord records in paragraph 153, the objective of detention has been to give the suspected terrorist, every opportunity consistent with security to challenge and test the allegations made aginst him. Now Schedule 1 is to sweep this away and replace it with an executive decision to be given by the Secretary of State. True, each case will be referred to an Adviser, but it appears that he will sit in splendid isolation, admittedly having the power to interview but with the respondent's case only to be conducted personally, not on a legally represented basis.

I admit freely that this process is going to be swifter, which is of great importance to those who are placed under an ICO. Although, as the Gardiner Committee records, the commissioners worked with scrupulous regard to the principles of justice, none the less, I concede also that the procedure was obviously open to criticism. But what worries me is that what at first sight may appear a welcome change, in its turn raises some fundamental questions. Is it consistent with civil liberties and human rights—part of the Gardiner Committee's terms of reference—that there will be no legal representation before an Adviser and, incidentally, no provision for an appeal? Despite the practical drawbacks of the commissioners' procedure, is it to the advantage of the suspect that no witnesses at all are to be cross-examined? Is an executive decision really preferable to a decision given by a lawyer after considering the available evidence?

Because every provision has been made in Schedule 1, following the recommendations of the noble and learned Lord, to ensure that within these procedures decisions will be reached once again with as scrupulous regard to fairness as is possible, I do no more than point out what I believe are the weaknesses of the Schedule. Inevitably, this new system will be criticised; but may I give the noble Lord an assurance that I am not trying to play this both ways. I believe that because the Government are genuinely attempting to sustain their authority, and to protect the public in circumstances where ordinary trial procedures are sometimes impossible, this Schedule, despite the weaknesses about which I have reservations, should none the less be supported and made to work.

What of the future? I was surprised to read in Thursday's House of Commons Hansard the Secretary of State's expressed opinion that by Christmas he hopes to be able to release all the 300 or so remaining detainees. Certainly it has been the policy of each of the three Secretaries of State for Northern Ireland since Direct Rule began to end detention when the security situation allowed. But I was not clear from the Secretary of State's words whether he took the view that this moment had now arrived. What is clear is that this would involve a high rate of release of the most difficult cases at a crucial moment in Northern Ireland's history. I realise that the Secretary of State has an unenviable task in balancing releases with the requirements of security, but in the coming months I hope he will not forget the threat of the work of the Convention from the men of violence who remain, waiting in the wings.

There are parts of the Report of the noble and learned Lord, Lord Gardiner, which have not been included in this Bill, and the noble and learned Lord referred to some of them on the Northern Ireland (Various Emergency Provisions) (Continuation) Order which we took just a month ago. Since the noble and learned Lord, Lord Gardiner, spoke, the Secretary of State has made clear during the Second Reading of this Bill in another place, that shortly an office is to be established in Belfast to serve as an advice bureau for those released from detention, to be manned partly by the Prison Welfare Service. This is welcome news; and so also was Lord Donaldson's statement this afternoon that the Government have the question of parole under close review.

What I found not so welcome a month ago was the view of the noble Lord, Lord Donaldson of Kingsbridge, expressed in reply to the noble and learned Lord, Lord Gardiner, on that occasion, that special category status appears to be an insoluble problem at the moment. I hope that the noble Lord's statement today that in due course the Secretary of State will make a statement on this intractable problem, which I freely admit he inherited, will be in the reasonably near future, though I suppose that the Secretary of State will wish to wait until he has reached decisions on the Report on Young Offenders which the noble Lord's own Committee has now submitted to his right honourable friend.

I know that Lord Donaldson's hopes that the new cellular accommodation which has been completed at the Maze may be suitable for juveniles. He has expressed that view before. May I take this opportunity to say that I wonder whether there might be an opportunity here to rehouse some special category prisoners, and perhaps make some progress in that way. My Lords, I have ventured to express reservations about Schedule 1 to this Bill, but otherwise I welcome these provisions which I believe are necessary additions to the emergency legislation for Northern Ireland.