§ 4.6 p.m.
§ Second Reading debate resumed.
§ Lord KILBRACKEN
My Lords, if I may bring the House back to the debate on Northern Ireland, I should like to begin by saying that this new legislation comes before your Lordships' House at a time when, for almost the first time, I am feeling a considerable degree of cautious optimism. In the opening remarks of my noble friend Lord Donaldson, I was glad to notice, or thought I noticed, the same cautious optimism. No interim custody orders have been signed since February, and the Secretary of State has said that he hopes to end internment by Christmas. The constitutional Convention have shown far more sense and responsibility than many of us ever thought we could hope for. There seems to be hope that they may even arrive at a conclusion that will be acceptable to the representatives of both communities in Northern Ireland, especially if the wilder elements on the Loyalist side can be kept under control. 919 Above all, the ceasefire is still holding, despite the severe—sometimes very severe—stresses to which it has been subject on the part of the men of violence on both sides, and also occasionally, it must be said, on the part of the Security Forces.
There has been a significantly lower level of violence. I must add that in recent months this violence has been more on the Loyalist than on the Republican side. Of course, this violence has also changed in its nature but it is not affecting the day-to-day life of the community to the extent that it affected it in the past. Therefore, I hope that at any rate the most important of the powers now offered by this Bill—I accept that it is necessary to have them in case there is a deterioration in the situation, which I very much hope will not occur—will never have to be employed, and that no extension beyond next January when the Bill otherwise expires will be necessary.
And I hope the Security Forces who need to have these powers in reserve will exercise them, and the other powers which they already hold, with the greatest possible discretion and maintain the lowest possible profile through these absolutely crucial months ahead. Having been in the areas where they are extremely visible on the streets of Belfast, I know the greatly increased tension that their very presence, their very visibility, causes and I wish that the Army could remain in their barracks or, at any rate, not in the general and daily view of the public unless they are investigating some specific incident. Although that may not be possible, I hope that their commanders will be urged to use the greatest possible moderation and tact in dealing with the security situation as it exists today.
So far as I am concerned, the most important section of this new Bill deals with the powers of detention, and before considering the changes I feel bound to follow my honourable friend Mr. Fitt, who said in another place in the debate on this Bill how much he wished that detention could end now instead of waiting until December. To choose the mildest possible metaphor, it is a wart on the face of British justice, and so long as it continues violence will continue. My prime wish is that detention could end at once, although of course I cannot hope 920 for one moment that my noble friend or his right honourable friend could possibly agree to such a course.
When we come to consider Schedule 1, which embodies some of the recommendations, and ignores others, of the Committee headed by my noble and learned friend Lord Gardiner, there are changes that I myself welcome, and others about which I feel apprehension. I want to go in a little detail into the new procedures which will be followed when this Bill becomes law. On the one hand, it is highly desirable that there will now be virtually no delay in informing a person after he has been detained as to the terrorist activities of which he is suspect. Previously, a man could be held for weeks and months without being given any indication of what was alleged against him, and now that is no longer possible.
Next, there will be a quite remarkable reduction in the maximum delay that is permitted to occur between the signing of an interim custody order and the making of a detention order, and the noble Lord, Lord Belstead, has already referred to this point. A period of seven weeks, which may be extended in exceptional circumstances by three periods of one week each, making a total of 10 weeks, is the absolute maximum. This is something for which I have asked earlier, because I have met men who have been held for months under interim custody orders and have then been released without any case being made against them. It seems almost incredible that it should now be possible, when under previous legislation men were held for such long periods, that the maximum period permitted between the ICO and the detention order is normally to be seven weeks; and when I consider that the, I think, 112 detainees who are at present held under interim custody orders will have to come before the Advisers within the seven weeks of the Bill's becoming operative, it seems to me that the Advisers will have their work cut out.
There are one or two points that I am not happy about and, although I do not expect my noble friend to reply to them today, I hope he may give them some thought before the Committee stage at which, I am afraid, I may not be able to be present. The first point is that a man who has been detained, a man who has 921 received an interim custody order, is given only seven days from the time he is told of his alleged offence to make a written representation to the Adviser. The Secretary of State said in another place that it was not intended to keep the man to that time table, and that if representations were made outside the week they would still be accepted. I think that is absolutely essential, because to get legal help, to arrange meetings with a solicitor, to draw up your case, to prepare it and submit it all in a week is, practically speaking, impossible, and if a man is to be allowed a longer period, as the Secretary of State indicated in another place, it should surely be in the Bill.
My second point was mentioned by the noble Lord, Lord Belstead: that is, that no lawyer or solicitor may be present, as he was entitled to be before, when the detainee appears before the Adviser. This change was recommended by the Gardiner Committee, although no definite reason for making the recommendation was given. It was indicated by the Secretary of State that the purpose was to bring about what he called "a much less formal arrangement" when the detainee appears before the Adviser. But, formal or informal, it seems to me unjust that a man who has had no legal training at all, and may have had very little education at all, should have to appear before the Adviser without his legal representative. Furthermore, although it is not stated specifically in the Bill, it appears from what the Secretary of State said that his lawyer or solicitor will not appear before the Adviser either. What he said was:There will be no legal representation at the inquiry".—[Official Report, Commons, 27/6/75; 896.]In any case, neither the lawyer nor the detainee will apparently have any knowledge, as they had before, of the evidence given by other persons called before the Adviser. My belief is that either the solicitor should appear with the detainee before the Adviser, or certainly that the solicitor should be called to give evidence before the Adviser.
The noble Lord, Lord Belstead, also mentioned that in the new legislation there is no provision, as there is under the existing Act, for an appeal when a detention order has been made. I have not been able to find any recommendation in 922 the Gardiner Report that this right of appeal should no longer be allowed. This means that once a detention order has been issued, the detainee can take no action to have his case reviewed for at least a year after the detention order has been made.
My Lords, one final point I want to make is that, if the detainee requests a review of his case after a year, the Schedule lays down that it must then be referred to an Adviser within 14 days. Incidentally, it does not state what happens if it is not so referred. There is no sanction so far as that is concerned. This time limit is an innovation but then, as before, once it has been referred to an Adviser, there is no time limit as to how quickly the Adviser has to consider it. There is no time limit on how quickly the Secretary of State has to reach his opinion. If there is a time limit for notifying the Adviser, there should also be only a fairly short time elapsing before the Secretary of State has to make his decision known.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, if I may interrupt, there is of course an overall time limit of seven weeks.
§ Lord KILBRACKEN
My Lords, perhaps I have it wrong. Of course, there is an overall time limit of seven weeks in the first instance when an interim custody order is served when a man is detained; that is to say, there are seven weeks between the interim custody order and the detention order. I am talking about the period between his application for his case to be reviewed and the decision of the Secretary of State. In that case, I think the noble Lord, Lord Donaldson of Kingsbridge, will find that I am right and there is no time limit. These are the only points I wish to raise. In general, I welcome the Bill and hope and pray that the progress being made—which we must believe and trust is being made—in Northern Ireland will continue in the months ahead.
§ 4.23 p.m.
§ Viscount BROOKEBOROUGH
My Lords, I should like to begin by welcoming this Bill, and say how sorry I am that some of us on this side of the House did not put down a Motion or an Un-starred Question to debate the Report 923 first before this Bill came in. But no doubt the noble Lord will agree that the programme is full enough without that. I feel that the Committee of the noble and learned Lord, Lord Gardiner, produced such a wealth of material which ought to be discussed, but which really cannot be discussed in a debate of this kind. For instance, I believe that not enough attention has been paid to the broadcasting by the media of people's religions when people are murdered, or to the areas in which people are attacked. I know of one incident which I would mention because it is particularly horrifying, where on the first of two successive nights it was mentioned that a Protestant had been missed, followed the next day by the murder of a Protestant. To all in the area where this murder occurred, it was quite obvious that the Provisional IRA murder squad was at work. In the days following, a considerable number of attacks were made on Roman Catholics in areas away from where that murder occurred, when in point of fact a Protestant murder squad were murdering their own people.
For that reason, I believe we should pay more attention to that part of the Report in which it is suggested that possibly the Security Forces should be involved in consultations with the Government, the BBC and ITA on their responsibilities in this matter. The fact that I have quoted that particular incident from my own knowledge is irrelevant as to what the man's religion was, or who the murder gang were. Whoever it may be, it is very emotive to hear that someone of some religion has been murdered, and in my view it produces the wrong reactions.
My Lords, I welcome this amending Bill, together with the 1973 Act, in implementing the Report of the noble and learned Lord, Lord Gardiner. But as the noble Lord, Lord Donaldson of Kingsbridge, has said, this is set against the present security situation in Northern Ireland and its handling by his right honourable friend and his colleagues. The Secretary of State in another place said that he intends to release all detainees by Christmas. He hedged that Statement around with all sorts of conditions, such as the prolonged cessation of violence, but we in Northern Ireland do not know 924 what that means. I believe it was a most unwise decision to announce a timetable. In the last 14 days, four soldiers have been murdered and one badly wounded, one ex-soldier has been murdered and another wounded, and several other attacks and incidents have occurred. It is at this moment that the Secretary of State has made the announcement that he will release all detainees by Christmas, hedged around by these conditions.
My Lords, I can remember when the Government of the day made the announcement of the date of withdrawal from Aden. I can only say that the men of violence in Northern Ireland believe that this announcement by the Government is a prelude to some form of disengagement. Whether consciously or unconsciously done, I am quite confident that just as the men in Aden armed violently and rapidly to make sure they were not the ones to be killed, this is going on in Northern Ireland today. I deplore it very much. I can no longer believe—and I should like to believe—that the release of detainees really will be related to the level of violence. Together with the Convention which I have always regarded as a trap to the people of Ulster to the separate nationalisation of Harland and Wolff which the noble Lord, Lord Donaldson of Kingsbridge, will say are far-fetched and totally irrelevant—all of these seem to me to be in danger of making it look as though there could be a disengagement from Northern Ireland. If I express my alarm fairly starkly, it is because our own lives are at stake in the area where I live.
My Lords, at the present moment, the public in Great Britain has reported to it only major incidents. Incidents which occur nightly, which would make headlines if they occurred in Birmingham or Liverpool, are not reported at all, and people genuinely believe that there is a ceasefire. But to my mind—and if I sound a note slightly different from that of the noble Lord, Lord Donaldson of Kingsbridge, I know he will understand my position—in South Armagh, an area 30 miles by 15 miles, there has never been a ceasefire. It has not been recognised under any conditions. Every night the IRA proudly carry out attacks; they even set up road blocks for considerable periods on our roads, and they proudly 925 claim the foul murder of those four soldiers at Forkhill. During all this time, the Army's profile is what is called low, and in order to avoid provocation, the Army in that area is supplied by helicopters. To supply them by lorries, with soft vehicles, would be considered provocative. The noble Lord will say, and other noble Lords have already said, that things are definitely better since the Christmas ceasefire. But I wonder how much better it would have been had there been no parleying with the men of violence. I have always felt that a ceasefire is very easy for the men of violence. All they have to do is to stop shooting without any parleying at all.
I know that the Government had a very difficult decision to make that time, and certainly nobody would deny the skill with which the Secretary of State has managed the affair since he made that decision. But I believe we are now paying for the consequences, and we are giving something in order to gain very little. The members of the Convention, almost without exception, believe that the ceasefire will be broken at a time convenient to the IRA. Some believe that it will be when the Convention fails to agree; some believe it will be when the Convention does agree. Others believe, as I do, that it will be when the IRA are at last convinced that they can get no more political advantage out of this ceasefire, and they must then be convinced, which they are not at the moment, that there will be no withdrawal from Northern Ireland. I do not believe that the IRA are conditioned in any way by the speed of release today. They have made it absolutely clear—every one of their spokesmen has said it—that what they require before the ceasefire is finalised is an announcement of British withdrawal. If they continue this ceasefire, it means that they still believe they can achieve their aim. It is the Government's duty to make it quite clear that that cannot happen.
My Lords, this amending Bill will change many things for the better and all of those I welcome. If we had had more time I should have liked to go into a number of the subjects which I welcome. The rebuilding of the Maze is a tremendous achievement by those involved. The record of the Royal Ulster Constabulary in arresting and charging 926 terrorists is a wonderful one, considering what they have been through and how few their numbers are, and their morale is truly remarkable. But in present circumstances it is the men who organise these crimes, who are behind them, whom we have to detain. Sad though it may be, I believe that if there were any further increase in violence detention would have to be reintroduced, and rapidly. I am delighted to have heard the noble Lord say that the Secretary of State would do this without hesitation, if there were an increase in violence.
In the face of a terrorist attack, every country must take legislative action to make quite clear the inevitable failure of the terrorist, because whatever country he is in it must be made clear that he cannot succeed. Whatever level of suspension of freedom any country decides to impose—because it has to suspend liberality; that is what is being attacked—what is most important is that that level shall be consistently followed throughout. My main criticism of what has gone on in the last five years is probably that we have always failed to be consistent. We detain, we release, we charge, we give political status and we release again. We do not pursue a persistent course. It is like dealing with children. Terrorists should understand that if they do something there will always be a reaction. It is not a question of being tough and rough; it is a question of being consistent. I think that the Irish Republic probably deserves as much credit as any country. They decided the level on which they would tackle the IRA, and they have tackled it consistently and quietly, without any deviation at all. I think they deserve great credit for it.
We have mentioned the question of political status, and the noble Lord has gone further than I thought he could do in saying that he would abolish it at the earliest possible opportunity. But I know of another man, a murderer, who is looking forward to going to court, looking forward to taking over as a compound commander. He becomes a big man, whereas in the area that he came from he was nothing but a petty criminal. At the same time as suspending these freedoms, we must also do what we can to support those citizens who are taking action and bearing the brunt on our 927 behalf. This is the burden of what I wish to say.
I feel that it is wrong of the Government not to have put in this Bill an amendment to Section 3(5) of the 1973 Act. This section deals with the granting of bail to members of the public who have committed an offence under the 1861 Offences against the Persons Act; I think I am right in that. A magistrate is prevented from granting bail, except to a soldier, and he does that on an undertaking from an officer that the soldier will be produced in court and, if I may quote paragraph 37 of the Gardiner Report, that he will be kept, "in military custody". That is a very important phrase which I will come to later. The magistrate is prevented from granting bail to a constable in the Royal Ulster Constabulary, who may have been with the soldier at the time when the alleged assault occurred.
I know that the original object was to demonstrate clearly that the police are only part of the citizens of a country; and I accept that it is very important that they should not be apart from the people. But it is self-evident to me that in the present conditions in Northern Ireland the Army and the RUC are appointed by the people to act as their agents in this perilous task of suppressing a revolution. It seems to me that the corollary of that is that they should both enjoy a protection which is not special, but is something which the ordinary citizen, because he is not engaged in that task, does not need. That is why I believe the Government should look again at this matter.
I know I shall be told that Her Majesty's Forces keep in military custody soldiers who have been given bail by the magistrate, and I am in no way suggesting that that is wrong, that this should not be so; I believe, as I have said before, that they should have this protection, because they are not in the position of normal citizens. But I find it difficult to see how a man given bail in a civil court, in connection with an alleged offence against the 1861 Act, can then be put in custody by the Army. In fact, I have had a look at the Army Acts—and I admit that there is a lot more in the Army Acts and in the Armed Services Act to go through—and I can find no power whatsoever to allow the Army to do this 928 legally. Paragraph 37 of the Gardiner Report, as I said, says that he will be kept in military custody. What does this mean?
Under Sections 70 and 74 of the Army Act, which deal with the keeping of a soldier in custody, a man can be kept in custody only if he is charged under the Army Act itself: he cannot be so kept otherwise. I find one very sinister phrase, and I wonder whether the noble Lord could comment on it. The 1966 Armed Forces Act, Section 15, says:A person who is subject to service law and is detained in the custody of a civil or service authority of a country outside the United Kingdom…".Is Ulster being treated as if it were outside the United Kingdom, and are these people being held under Section 15? Otherwise, I can see no right by which the Army can keep them. I believe that this country has been kidded into believing that the men who have been granted bail in front of a magistrates' court have been kept in military custody.
May I turn to Hansard, because the Government, and even my own Party, the other day contributed to this. On July 14th, Mr Mates said:He will be aware"—that is, the Reverend Ian Paisley—that when a soldier is bailed it is a technical matter, because there is provision in the Army Act for him to be held in military custody."—[Official Report, Commons, 14th July, 1975, c. 1196.]With those words the Minister, Mr. Moyle, did not disagree. In fact, the Minister himself said:The honourable Member for Esher (Mr. Mather) put his finger on the point that members of the Armed Forces are subject to the Army Acts." [Col. 1200.]I can find nowhere that they are subject to the Army Acts. If I am right, then the RUC should have the same "privilege", which was the word used in the Report, as the Army has.
I believe that it is done on what might be called the "old boy net". The magistrate is approached by an officer authorised by the Army to say that he will see that the soldier is brought to court at the required time. But the courts in Northern Ireland have been assured that the man will be kept in custody, and it is on that basis that bail is granted. I cannot see, by any stretch 929 of imagination, how this can be called military custody, and I wonder when criminal law has been administered on what I would call a "friendly basis".
Once the man is in barracks he is restrained in that he is kept there voluntarily. I suppose he gives a voluntary undertaking. If he decides to run away, there is no way by which the Army can stop him except to restrain him by physical force. And I should have thought that the Army would then be liable for assault, because he is not charged under the Army Act and the Army has no right to hold him unless he is so charged. If I were the magistrate, I would certainly not be satisfied with considering that sort of operation as "in custody". There are many other reasons why the RUC should have the same privileges. I am not asking for automatic bail; I am asking only for discretion to be returned to the court for the Army and the police.
During the last few months the emphasis has been very much on bringing these villains to court, and the record of the RUC has already been commented on. But the effect of this is to put the RUC into the van to a greater extent than they were when the Gardiner Report was first produced. Both the soldiers and the police in Northern Ireland are the direct agents of the Crown and since their position, their employment, is at stake the sanctions that can be applied against them seem to me to be so enormous that the chance of them bucking bail is very small. This view has been supported in the very few cases which have come before the High Court. Because they were quite certain that the police were liable to be given bail, that it was right and proper that they should be given bail, they have heard their cases with tremendous rapidity.
I think that the method by which our High Court hears bail applications throughout is an example anywhere. But this does not alter—and I know that I am challenging a most able Report by most eminent men—my disagreement with paragraph 37. The Royal Ulster Constabulary are at a disadvantage. The High Court cannot always hear an application for bail at once, and the indignity and humiliation imposed on a police 930 man, who is alleged to have committed assault and has been arrested and kept in custody, is something which aids the terrorist who aims to discredit the forces of law and order and the Judiciary.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, may I intervene? The noble Viscount is giving the impression to the House that this is something that has happened, but it has not.
§ Viscount BROOKEBOROUGH
My Lords, it has not happened because, in the few cases in which a policeman has been charged, the High Court have heard the bail applications at once. I feel, and this brings me to the next point, that it is not a good thing for Justice if the High Court appear, because they believe the policeman to be worthy of getting bail, or likely to be, to give more attention to a police application for bail than to an ordinary person. I feel that this impression should be removed.
Finally, in my appeal to the Government, may I say that, strange as it may seem to all of us here, Section 3(5) is seen by many people in Ulster as being an insult to their very fine and gallant police force. Indeed, the last Government almost had to deal with a mutiny, because that force believed it to be so. Therefore, I feel that the Government should look again most seriously at this section, because the operation of the so-called military custody of soldiers granted bail by the magistrates is not proper, and, secondly, because I believe that both parts of our civilian forces—that includes the Army, who are still acting under Common Law—should be given extra protection. I therefore welcome the Bill.
§ 4.46 p.m.
Lord PAGET of NORTHAMPTON
My Lords, the noble Viscount, Lord Brookeborough, has suggested that the Government should seek to demonstrate that terrorism cannot succeed. That would certainly involve a revolutionary change in the policy not only of this Government but of every Government which this country has had since the war, 931 because on every occasion since the war Governments have so conducted themselves that terrorism has always succeeded. In Palestine, in Cyprus, in Aden, in Kenya, in a variety of places in Africa, terrorism has always succeeded. The principal road in Nairobi which was once named after our present Queen, Princess Elizabeth, is now named after the terrorist General whom we eventually captured and hanged. This is the measure of success of terrorism.
The rôle of a succession of Her Majesty's Governments has been that when faced with terrorism they have regarded themselves as a kind of referee to keep the ring between the terrorists and their own forces, leaning a little on the side of the terrorists, giving the impression that, after all, the terrorists are people with whom they will eventually have to deal when they become the Government, and they should not have to fight them for too long. It is that sequence which has led to the present position that we are facing.
I do not find this a happy situation, even though I find it a profoundly foreseeable one. We are in the third year of this miserable business, we are in the third thousand of the victims of assassination. We are having what we are told is a ceasefire. This seems to me very odd language to use. It is a language which may be used between belligerents within the rules of civilised warfare—if warfare can ever be called civilised—but a ceasefire between the police and the assassins seems to me odd. The very use of the word seems to involve the recognition of the assassins as lawful belligerents. The ceasefire seems to be a success so long as murders run on at an average of about one a day. We are told that we must be very careful, because we are under threat that the ceasefire may stop and the murders may be considerably more frequent. I do not believe that we can ever succeed on this kind of basis. I remember well being involved in Cyprus in the early days, when it all seemed so very clear. I put in a report to the late Lord Harding, who was there, in which I said very simply that the alternative to civil war was British rule and that, if British rule was to continue, we had to do what was necessary to stop EOKA. I am certain that, 932 if the forces had had their hands freed for a fortnight, EOKA could have been eliminated. It would have been the easiest thing in the world, if the British Government had not effectively been playing on the side of EOKA and preventing our forces there from taking the steps which were at that time so obviously available. We have seen what has happened since. The misery is not ours but that of the people of Cyprus. The civil war has come and many thousands of people have died, and died horribly. NATO is in disarray; all because we were too squeamish to kill a few hundred people when it was necessary. Much the same happened in Aden, but I will not go into the details of that.
When this happened two years ago in Ireland I produced a solution which was then regarded with the utmost indignation. I said, "Take the detainees who are acknowledged members of the IRA, have a lottery, put them in a row and say, "Each time a bomb goes off, one of them will be taken out and shot!" Had we done that we might have shot half a dozen, but we would have saved a couple of thousand lives. It is this lack of courage in the face of violence—a lack of courage to be more violent when it is necessary; quickly, hard and resolutely—that always leads to this miserable sequence of events that goes on and on.
We have now reached a situation in which there are two solutions and they are now vastly more difficult. To my mind, one is to put Northern Ireland under martial law, and by that I mean that one gives the Commander-in-Chief of Northern Ireland authority to issue orders and to try offenders against his orders. Those orders would include a ban on the carrying of arms, the possession of explosives and various other forms of assault on the police. He would be given the right to try those offences by field court-martial under the presidency of a major, to be carried out within 24 hours of arrest and the sentence to be executed within 24 hours of it being given. I think that such a solution would stop what is now happening. If we do not adopt such a solution, we will meander on until we pull out and leave the civil war to inflict its casualties. But if we do not have the nerve to do what is necessary, then I believe it would be better to pull out now.
§ 4.54 p.m.
§ Lord MONSON
My Lords, I shall not detain our Lordships for long, particularly as most of the time I had put aside for preparing for this afternoon's debate was necessarily occupied in clearing up after an unexpected and most unwelcome intruder. I sometimes feel that we need a London (Emergency Provisions) Bill to cope with the veritable flood of burglaries with which this city is plagued and which the police seem powerless to prevent.
Having got that off my chest, one appreciates that we must see these things in perspective and realise how much more fortunate we are on this side of the water, from the point of view of all crime and violence, than our fellow subjects in Northern Ireland. And it is the vastly greater suffering that is being inflicted on them that this Bill is designed to alleviate, if not entirely to eliminate. One welcomes in particular Clause 11, which relates to radio transmitters which may be used for illegal purposes, and also Clause 12, although I agree with the noble Lord, Lord Belstead, that its scope may not be wide enough; perhaps this can be examined in Committee. Similarly, Clause 13, which makes it an offence to monitor the movements of certain people at risk, such as the Security Forces, prison officers and the judiciary. It was suggested in another place that this clause might be widened to include civil servants employed in the prisons branch of the Northern Ireland Office and perhaps civil servants employed in the incidents centres. I do not think any reply was given to this in another place and perhaps the Minister, when he replies today, will give his opinion on the validity or merits of this suggestion.
Clause 14 is, I suppose, what one might call a liberalising clause, in that it recommends a reduced penalty for riotous and disorderly behaviour. This is entirely justified because one knows how easy it is for people to get caught up in a riot situation against their better judgment, and rioting is not one of the problems with which the Security Forces have to deal at present to any degree; the situation may be different in six months' time, but for the moment it seems right that the maximum sentence for this should be reduced. Clause 15 is extremely welcome and desirable also in so far as 934 it creates an offence of giving or receiving training in the use of firearms and explosives.
Before leaving this clause, may I draw attention to paragraph 70 of the Gardiner Report which recommends the creation of a new offence of being concerned in terrorism, with the suggestion of a maximum term of imprisonment on conviction of 15 years. This was discussed at some length in another place with a view to the recommendation being implemented either by a new clause as an amendment to Section 19 of the principal Act or possibly, if I have interpreted it correctly, by extending the scope of both Clauses 12 and 15 of this measure, and possibly increasing the maximum sentences applicable to these, though probably not to as much as 15 years' imprisonment. Again, this would seem worth while examining in Committee.
I echo entirely what other noble Lords have said about the Special Category prisoners. This has been criticised by all noble Lords, and it was criticised in every quarter in another place. I see the Government's problem about eliminating this in one fell swoop and I appreciate that it must be phased out, but there are certain things one would think could be dealt with almost immediately; for example, the humiliation inflicted on ordinary prisoners, some of whom may be guilty of very minor offences, by making them serve food and otherwise wait on Special Category prisoners. I do not see why this practice should not be stopped almost immediately.
I come to the question to which the noble Viscount Lord Brookeborough, particularly drew attention; that of the granting of bail to the police. I naturally take the point, made by the Secretary of State in another place and by the Front Bench Opposition spokesman, about the police having civilian status. Of course, the police want civilian status and would like to lead the normal life which the police lead in the rest of the United Kingdom and to have no privileges which are not accorded to other members of the community, but Northern Ireland is in an emergency situation—otherwise we would not be discussing this Bill—and the police are very much in the front line. I do not know whether this is fully appreciated on this side of the water. I believe, though I have no definite figures, 935 that the fatalities among the police are proportionately higher than those suffered by the Armed Services. Certainly, 65 police, including two policewomen, have been murdered during the six years of the emergency. This may not sound like very many until it is translated into British terms. It is the equivalent of 2,290 policemen being murdered in England. Wales and Scotland.
I suggest that, if that number of policemen had been murdered in Great Britain over that period, the whole country would be in a turmoil and an uproar and the death penalty would almost certainly have been reintroduced as a result of the pressure of public opinion. I believe that the population of Northern Ireland and its police have in many ways been extraordinarily undemanding and patient. I feel that, in these circumstances, though not in the circumstances of normal civilian life, to refuse the police bail not only demoralises them but chips away at their prestige and status in the eyes of the community. As the noble Viscount Lord Brookeborough, said, it inflicts humiliation and indignity on them.
The Secretary of State emphasised on 27th June last that the police are the key to the security situation and that they must receive support. On Third Reading in another place, a Conservative Member emphasised that there is strong feeling in the RUC on this issue. He asked whether the Secretary of State would do something to maintain the confidence and the high standard of morale of the RUC. Most significantly, Mr. Gerry Fitt of the SDLP said on 27th June in reply to the Reverend Ian Paisley:I accept the honourable gentleman's point that if the police are to be treated in a special way, as opposed to the status given to the other members of the Security Forces, the UDR or the Army, there would seem to be a lack of justice."—[Official Report (Commons), 27/6/75; col. 928.]With support from so many quarters for exceptional treatment of the police and, having read between the lines of the debates in another place on Second Reading, at Committee stage and on Third Reading, from which I infer that the Government may not in fact be adamantly opposed to special treatment for the police so far as bail is concerned, I 936 hope that we may be able to do something to help this very brave body of men.
§ 5.5 p.m.
§ Lord GARDINER
My Lords, I am not at all sure what is my right function this afternoon. I remember a time when Governments used to say, when the Report of a Committee which they had appointed was published, that they could not decide what view to take of the recommendations until they knew what Parliament thought because, they would say, they attached the greatest importance to the views of Parliament. Later, I became slightly suspicious as to how far they really minded what Parliament said, though they still went on saying this. I suppose that it is not very often that a report of this kind is published but nothing happens for six months and no attempt is made by the Government to have a discussion on the report in either House. I was told nothing, then I was told that within 24 hours there was to be a Bill. The Government had made up their mind.
Of course I appreciate that this has been a very difficult Session for Parliamentary time, particularly in the other place. It may be said that Private Members could have introduced such a discussion, but we all know that adjournment debates in another place and short Wednesday debates in this House are not all that easy to arrange. As a result, the Bill comes before us with no discussion at all except that, on the Motion which my noble friend Lord Donaldson of Kingsbridge moved to extend the period of operation of the emergency legislation, I mentioned one or two points which had occurred to me on reading the legislation. I do not want to go further into those points.
As the House may remember, we expressed a very strong view about the lamentable absence of sufficient prison accommodation. It was some years ago that the Cunningham Committee pointed out the need for an additional ordinary prison with cellular accommodation. Nothing was done. As we said in our Report, no brick had been laid upon another. The same is true today because, rightly or wrongly, the Government have taken the view that instead of using one of their own sites like, an Army camp and starting to build on it the next day, they thought another site which they did not 937 own would be better, so they applied for planning permission. This has gone on for months and months. Now the planning inquiry is over but the Government cannot get the report out of the Inspector. What I should like to ask my noble friend is this: if the Government do not get planning permission, what will they do about building a prison and where do they plan to build it?
I am not sure that I understood the point raised by the noble Lord, Lord Belstead, about certifying out. I do not know why the Government did not accept our recommendation about that. It was designed to ease the difficulty of the police. I do not recollect having been told.
§ Lord GARDINER
My Lords, the noble Lord, Lord Belstead, raised the question the powers of the Attorney General to certify out which could embrace the Armed Forces.
§ Lord BELSTEAD
My Lords, I was referring to a speech made on winding up the Second Reading in another place when, as I understood it—and if I am wrong, the noble and learned Lord, who is so distinguished a lawyer, will perhaps forgive me and correct me—the Attorney-General, who was speaking for the Government, accepted the noble and learned Lord's recommendation. I ventured to say that I welcomed that.
§ Lord GARDINER
My Lords, I believe that I misunderstood the noble Lord. I am not certain even now that the Government understand the point about Clause 3. It does not matter, because it is only a small point, but it is simply that all Parties, both in Government and in Opposition, have always agreed that one can justify emergency procedures—reducing the accused, altering the right of evidence, taking away trial by jury, and so on—only for terrorist offences. This was the origin of the distinction between scheduled offences—that is terrorist offences—which had to be tried by special one-judge courts on the recommendation of the Diplock Commission, and non-scheduled offences which had a right to trial by jury. This 938 works perfectly well, and if a man is charged with both scheduled and non-scheduled offences he is tried before a Diplock Court for the scheduled offences. If he is convicted, nobody bothers about the unscheduled offences, and he is sentenced. If he is acquitted, he is tried before a jury for the non-scheduled offences. This works perfectly well, except that we were told, mainly by the police, that sometimes the scheduled and non-scheduled offences were very closely involved together and that it would be neater for them to be tried by the same court.
We were asked whether there would really be any objection to saying that both types of offence could be taken by the Diplock Court judge, provided the accused agreed. We said, "If the accused agrees to give up his right to trial by jury, why not?" We pointed out that there might be a difficulty, with some people saying nothing but "Up the IRA!" in knowing whether or not the accused had consented, so we went as far as to say that it could be done provided he did not object. As I understand it the Government have said that this is very complicated and that it is difficult to tell whether he is consenting or objecting, and that therefore they will give the judge the power to deprive him of his right to trial by jury on a non-scheduled offence, if the judge thinks fit.
If there is all this difficulty in ascertaining whether or not someone is objecting I should have thought that the Government would have said that they would not accept that recommendation, but would leave things as they are, no real harm being done. But it may be that, inadvertently, the Government are now, for the first time, to deprive a citizen of Northern Ireland of the right he has always had to trial by jury for non-scheduled offences. Some of us feel more strongly than others about juries, but having heard 97 witnesses and read 157 memoranda I discovered that in Northern Ireland people generally feel even more strongly about the right to trial by jury than, I think, the National Council for Civil Liberties here.
Indeed, we had a great many applications to us to recommend the restoration of trial by jury for scheduled offences, but for the reasons given in our Report we did not think that that time had yet arrived.
939 The noble Lord, Lord Kilbracken, made an encouraging speech and, as he said, there is an atmosphere of cautious optimism. The only point I wish to touch on from those he raised is that concerning legal representation in relation to detention. In substance, putting it colloquially, we found—and it was quite well meant—that it looked as if the detainees were getting a trial when really it could not be regarded as what anybody would call a trial. It had the trappings; it had commissioners; it had counsel and so on. The difficulty about legal representation, for example, is that as set out in paragraph 131, that:The evidence given by these witnesses is, in the main, hearsay—first-hand, second-hand or even of remoter degree…Much of it is derived from information from paid Informers, who receive payment varying from beer money to weekly wages and even substantial lump sums; some of them have criminal records. They do not attend the hearings, either because it would be too dangerous for them to do so, or because they are afraid.The Bar felt that in a sense it was taking money which it could not justify taking because it could not do anything for the detainees. In some cases the detainee cannot be told even what it is he is supposed to have done, because if he was, he would see at once that there could be only one informant, and the informant never appears, and his identity must, at all costs, be protected, as one can understand in the conditions existing in Northern Ireland. This is why we felt that legal representation sounded very well but was not a reality nor something which would do any good.
I had better leave to my noble friend the question of the police and the Army. So far as Section 3(5) was concerned, we simply felt that whatever it looks like on the face of it, it does not happen in practice, and therefore does not do any harm. I was not clear whether or not my noble friend Lord Paget of Northampton had read the Committee's Report. I should welcome a discussion with him at some time, mainly on Vietnam, on the theory that if enough people are killed, brutally enough, quickly enough, it would be possible always to stop people who are under the delusion that they are fighting for their freedom. If enough of them fight for their freedom and if enough are prepared to 940 die for what they consider to be freedom, free they will be. But that is a debate which can perhaps take place on another occasion—
Lord PAGET of NORTHAMPTON
Of course I should entirely agree when this becomes a national movement. In the cases of EOKA, the IRA and the Mau-Mau one was dealing with very small groups indeed, and strong action, if taken early enough, could prove entirely successful.
§ Lord GARDINER
My Lords, in conclusion I simply say this. There are, I think, hopeful signs. I was very grateful to my noble friend Lord Donaldson of Kingsbridge for what he told us about what is being done for Special Category prisoners, and in regard to the other fields he mentioned. In a personal capacity I am an admirer of the Secretary of State and of the policy of the present Government in relation to Northern Ireland. I think it has been very good that for so long, whatever Government have been in power in England, there has been no real quarrel between the Government and the main Opposition Party. I am quite sure that conditions in Northern Ireland would be very much worse today if in the past two or three years there had been violent disagreements between the two main political Parties.
Finally, I wish to say how much I welcome the Statement by the Secretary of State—I thought it a brave Statement—that it was possible that, dependent on events detention might end by Christmas. That obviously must depend entirely on events. We had a mass of evidence from all those bodies in Northern Ireland of all political persuasions who said that they did not like detention. We said, first, that detention as introduced—originally internment—was not a breach of the European Convention of Human Rights; secondly, that with the nature of terrorism today, detention without trial is a weapon which a State faced with terrorist conditions is entitled to use.
941 Thirdly, we set out all the arguments for continuing detention and all the arguments for ending detention, and we then said this in the Committee's conclusions:After long and anxious consideration, we are of the opinion that detention cannot remain as a long-term policy. In the short term, it may be an effective means of containing violence, but the prolonged effects of the use of detention are ultimately inimical to community life, fan a widespread sense of grievance and injustice, and obstruct those elements in Northern Ireland society which could lead to reconciliation. Detention can only be tolerated in a democratic society in the most extreme circumstances; it must be used with the utmost restraint and retained only as long as it is strictly necessary. 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 timing.We think that this grave decision can only be made by the Government.
My Lords, I still think that that is so. It was quite clear to anyone looking at the history of terrorism and detention without trial that every country which has imposed detention without trial has found it extremely difficult to get rid of. I do not believe that in any of these countries there is a single Security Force which has ever said, "Yes, the time has come to end it." Once we have detention it is so convenient, it is so liable to go on. That is why, bearing in mind what my Committee has said, I particularly welcome the observation of the Secretary of State, and I greatly hope that the much better conditions which exist in Northern Ireland at present may continue until we reach that result.
§ 5.19 p.m.
§ Viscount MASSEREENE and FERRARD
My Lords, it is a pleasure to follow the noble and learned Lord the former Lord Chancellor, whom I have often previously followed. I am a great admirer of his intellect. I wish to intervene for a moment in this little argument between the noble and learned Lord and the noble Lord, Lord Paget of Northampton, who is sitting behind him. The noble and learned Lord, Lord Gardiner, said quite rightly that if people are fighting for their freedom it does not matter how many of them are shot. If they are fighting for their freedom, to shoot them will be counter-productive. But are these assassins, these terrorists,
942 fighting for their freedom? I understand that a great number of them are hired assassins. I do not think the average terrorist in the North of Ireland who commits these appalling crimes is convinced that he is fighting for his freedom for he has complete democratic rights, and he has religious freedom. So what freedom is he fighting for? No one is a greater admirer than I of the law—in fact, I am overawed by it. I am frequently pursued by the law—for parking. But the terrorist, as I am sure the noble and learned Lord, Lord Gardiner, will agree, is very difficult to control by the law because he has no respect for it.
Having said that, I should like to say how much I welcome this Bill. I think it goes further than previous Bills, in that it realises that the innocent individuals and the weak have to be protected, even if by so doing it has to a certain extent to overrule our concept of the law. I believe that it is quite right so to do, and of course it is right that the Secretary of State, whom I admire, should have a certain freedom of action; because conditions in Northern Ireland are such that they change from day to day and it would be absurd for the Secretary of State to be bound too strongly by Parliament.
My Lords, I particularly welcome Clause 9, a clause with which the noble Lord, Lord Kilbracken, found fault. I think that it should speed up the procedure regarding detainees. I was pleased to hear the noble and learned Lord, Lord Gardiner, say that his Committee did not advise legal representation for detainees in that initial period. Perhaps I might now go on to Clauses 11, 12, 13 and 15. I think that these are a great step forward—and Clause 15, in particular, by making it an offence to train others in the use of arms or explosives or to receive such training. There is no doubt that some offenders may slip through this net in spite of subsection (2). It will be difficult to prove that someone does not require a firearm for, say, shooting rabbits on his farm. I think that some people will certainly slip through the net. The only way in which a great blow could be struck at the terrorists would be to ban all forms of arms to anyone, except the police and the Armed Forces. This, of course, would be tantamount to martial law; but this, I 943 feel, is what would be necessary if we wanted to make security absolutely watertight.
The other clause that I like very much is Clause 11, which deals with radio transmitters. The sophisticated weapons that can now be imported into Northern Ireland are quite extraordinary—paid for, presumably, with money stolen from banks by the IRA, or perhaps money from international Communism. Certainly, the IRA and the Provisional IRA now possess some very expensive material. Clause 11 is a step forward and it is a pity that we cannot do the same with radio receivers; but, of course, that would be impossible for nobody could then possess a wireless receiver.
The other clause I like is that dealing with the ban on wearing hoods or masks or anything to conceal the features. It is a pity, too, that we cannot have this provision covering the whole of the United Kingdom. My noble friend on the Cross-Benches said that he had recently been burgled. I have been burgled several times and I feel that these provisions banning concealment of features would be of great help, not only in Northern Ireland but throughout the United Kingdom. May I say a few words about the Secretary of State's announcement that it is his intention, so we understand to end, detention by Christmas? I hope that he acts with the utmost caution. It is true that if there is no evidence to prove that the terrorist organisations have the power to embark on their acts of destruction after Christmas, that is all very well. So, too, if there is evidence that these terrorist organisations are dying out; but if the Secretary of State releases all the detainees by Christmas without information that the terrorist organisations are defunct, but they are capable of launching renewed attacks, then that would be a dangerous thing to do and I do not think it would be fair to the people of Northern Ireland. I have heard the most extraordinary rumour, which I cannot believe, that the IRA and the Provisional IRA really do not want detention to end, because it provides an excuse for them to continue their acts of violence. I really think that must be complete nonsense.
My Lords, perhaps I might refer to a letter which the noble Lord, Lord 944 Donaldson, wrote me following my intervention the other day. I was pleased to hear from him that since 10th February, since the ceasefire arrangements, no former detainees have been arrested for, or, at least, charged with, scheduled offences. I do not know whether I am in order in referring to the noble Lord's letter. It was a very nice letter. There were no secrets in it, but the noble Lord also told me—and this was a bit more worrying—that, in fact, since the emergency three former detainees had been charged with scheduled offences. There was something which the noble Lord said which cheered me up. It was that the Government have evidence, apparently, of a number of former detainees whose families, after their release, had brought influence upon them to mend their ways. I understand from reading the noble Lord's letter that they apparently have given up any idea of embarking on any more political violence.
Might I now turn to something mentioned by my noble friend on my right and also by the noble Lord, Lord Monson; that is, the subject of the Royal Ulster Constabulary? I have always been of the opinion that one of the splendid things about this country is that in it all men are equal before the law. As I see it, the RUC are denied this. They do just as dangerous a job as Her Majesty's Forces; but I should hardly think they have the same protection as have Her Majesty's Forces, because they do not have the force of armament. Why is it that the Royal Ulster Constabulary cannot have this automatic right of bail? My noble friend Lord Brookeborough told me something that I did not realise, though I have been in the Army. I thought it was a fact that, under the Army Act, the Army can take any soldier into custody. Therefore, if there is a legal case, the case of the RUC might not be so strong in practice.
But the point is not so much the complete 100 per cent. meaning of the law, but if the RUC—and this is a very brave body of dedicated men—feel in an inferior position to Her Majesty's Forces, it is bad for their morale. If they have arrested an IRA man and he charges them with assault, they may feel that they are not going to get the same treatment as a member of Her Majesty's Forces. The Government ought not to split hairs over 945 this; they should not quibble. The RUC should have an automatic right to bail during a state of emergency. I hope that one or two of us here may put down an Amendment on that subject at Committee stage. I suppose that there is bad in every organisation. There may have been instances where an RUC man might have been too tough with an IRA man, but I find that hard to believe. If so, perhaps the RUC man was rightly accused of assault by the IRA man. I feel—
§ Lord KILBRACKEN
My Lords, as the noble Viscount has referred six or seven times to the IRA, I wonder whether he is aware that there are terrorist forces on the other side who are causing as much violence and as many deaths, and perhaps he might also take cognisance of their existence.
§ Lord KILBRACKEN
My Lords, what started the present troubles was when there were belligerent actions by the Unionist community against the Civil Rights marchers in 1969.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I do not think we should pursue this major issue any further.
§ Viscount MASSEREENE and FERRARD
My Lords, I agree with what the noble Lord, Lord Donaldson of Kingsbridge, has said. I do not agree with the noble Lord who has just sat down. I will not keep your Lordships any longer. I should like to ask the noble Lord to look with sympathy on the RUC regarding this matter. Before I end I should like to say that I admire Mr. Merlyn Rees who has an appallingly difficult task, and wish him the best of luck. I should like him to remember that I think it was the noble Lord, Lord Belstead, who said that the dangers are immense, and that even if you get an agreed policy in the North of Ireland it will not necessarily content many of the terrorists and they will embark on further acts of violence, so in the end the noble Lord, Lord Paget of Northampton, may be right. But I suppose, in the days in which we live, what he said is not practicable. I am sure that if Soviet Russia was in our shoes, this trouble 946 would not have lasted more than six weeks. Having said that, my Lords, I will sit down.
§ 5.35 p.m.
§ Lord O'NEILL of the MAINE
My Lords, I apologise for not having put down my name to speak this evening; I did not think that it would be possible for me to be here owing to two previous engagements. I am sorry to have missed the speeches of the noble Lord, Lord Donaldson of Kingsbridge, and also my noble friend Lord Belstead, both of whom know a very great deal about Northern Ireland, and therefore their views are obviously of the utmost importance to the consideration of this Bill. As one who has been critical in the past from time to time of the Administration in Northern Ireland, I should like to make some remarks pointing to the difficulties with which they are faced.
I sometimes wonder whether the British people realise how difficult it would he to find the person who could pursue policies which were acceptable to both sections of the community in Northern Ireland. People in England are apt to imagine that Northern Ireland is like England; it is not at all like England, and it would be almost impossible to find a person who was acceptable to both sections of the community. On the plus side, we must remember that at the moment, by and large, it is true that British soldiers are not being killed, bombs are not going off in London, Manchester and Birmingham. Is there not a British dimension in Northern Ireland affairs? Should the rights and conveniences of the British not be considered when they are willing to provide sometimes up to 20,000 British soldiers to deal with the appalling problems which exist in Northern Ireland? I think that these pluses must be remembered at a time when we are considering the minuses which undoubtedly exist and would exist whoever was trying to administer this Province at the present time.
For me it has been extremely interesting to see how, in a matter of 10 months, Mr. Enoch Powell has discovered the realities which exist in Northern Ireland. He assumed that it was so easy to walk into the Province and accept the slogans which he had heard so often on his daily visits to Northern Ireland platforms. He has now suddenly discovered that there 947 are many people in Northern Ireland who are in favour of UDI, and he is now a frightened man. I admire him for the two speeches which he has made in the past three weeks drawing attention to the great dangers which will exist if extreme Protestants decide to declare UDI.
In my day there were two streams in the old Unionist Party. There were those who were in favour of United Kingdom citizenship. That was the stream to which I belonged because of its manifest advantages to all the people of Northern Ireland, such as a higher standard of living than at that time existed in the Republic of Ireland. I must admit that since the Republic of Ireland joined the EEC—and, indeed, long before that owing to the economic plan of Dr. Kenneth Whitaker—they have forged ahead. At that time—this is 20 years ago—there was that moderate stream which valued United Kingdom citizenship for the manifest advantages which it conferred on all citizens in Northern Ireland. There was the other stream which was purely and simply anti-Catholic. The first stream is no longer represented in the present so-called Unionist Party. It consists almost entirely—there are some exceptions—of the second stream.
In August 1971, rightly or wrongly, internment was introduced in Northern Ireland. Nobody who studies Irish history will ever be allowed to forget that date. I remember saying to one or two senior Ministers in the Conservative Government shortly after Direct Rule was introduced six months later, "Had you realised six months earlier that you yourselves would have to take over responsibility for Northern Ireland, would you have agreed to the policy of internment?" The reply was, "No, we did not know at that time what we were doing. We knew nothing about Northern Ireland affairs". That has completely changed. As I said at the beginning of my remarks today, on both Front Benches there are two experts on Northern Ireland. As I say, this question of detention is a very complicated problem. We cannot forget that when detention was introduced the extreme Protestants protested against it. We do not hear any of their protests today because all the Protestants are now out of Long Kesh. In those days the extreme Protestants were in favour of total integration. 948 Today the only person I know of who is in favour of total integration in Northern Ireland is Mr. Enoch Powell.
I mention these facts because it is so easy for any intelligent observer to visit Northern Ireland and come to certain conclusions. But those conclusions will be rendered null and void six months later because in that unhappy Province opinion constantly changes. So, my Lords, if there is anybody in this House who imagines that there is some paragon who can somehow or other satisfy all the people of Northern Ireland—and I have no idea who may be listening to my words—that person does not exist. There is no person in Britain today who can satisfy the two streams which exist in Northern Ireland.
All we can say is that the present Government are doing their best in extremely difficult circumstances, and that any British person who forgets the British dimension in the affairs of Northern Ireland will live to regret it. In the last analysis, if the British are to stay in Northern Ireland it will be because the British want to stay, and if people in Northern Ireland make it impossible for them to want to stay they will rue that day and they will regret it. The British people have put up with quite a lot during the last five or six years.
§ 5.44 p.m.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, the noble Lord, Lord O'Neill of the Maine, has an agreeable habit of coming it at the end and, if I may say so, raising the tone of our debate. He made a very interesting speech and I am not going to say much about it because obviously I agree with the general line that he was putting forward. But I think one should be fair where fairness is required. Dr. Paisley still objects to detention; he said so the other day, but otherwise, as the noble Lord said, opinions change. Thank goodness they do! There has been a major shift of opinion even in the 18 months since I have been there and if they ever harden that is when we will run into explosion. We must keep things moving.
My Lords, we have had a very varied and interesting debate. I should like to begin at the most extreme end with my noble friend Lord Paget of Northampton. My noble and learned friend Lord 949 Gardiner put the first half of the argument. All I would say is this: there is a good deal to be said for the "shoot the lot" school if you can get out if it fails. This is not the position of most people who are governing. For example, in Germany and occupied France the "shoot the lot" school ruled supreme and did a good deal more than shoot, which it seemed to me my noble friend thought might be acceptable. In any case they suppressed opposition during the war or it was kept down to a very limited amount. But the war ended, as things do end, and the people who supported them had their hair cut off and were driven round the square. They had done absolutely nothing to change public opinion. If my noble friend really thinks that that is the right way to govern these two very disparate and troublesome groups in Ireland, I think that he must think again. Obviously it is not something that can possibly be done. We can say with certainty that if it was to be done, it ought to have been done a long time ago and not now.
So I think my noble friend will forgive me if I do not discuss his extremism any further. We might perhaps have a drink over it some time later! I should like to take two major subjects which have come up during the discussion. First, most noble Lords have talked about detention, and we want to get the facts clear. I think it was the noble Lord, Lord Belstead, who said that we should have to be quick about it. It would mean a very much increased release if we were to get the detainees out by Christmas. Let me repeat what my right honourable friend said. It is rather important not to be confused about this. He said:I cannot commit myself at this stage to a specific date, but I hope the situation will progress sufficiently to enable all the detainees to be out by Christmas.May I point out that during the worst part of 1974—that is, between June and December—the Secretary of State released 71 and the Commissioners released 117, making 188 in all. So all through the very bad times—Birmingham and all the rest of it—releases were going on.
The noble Viscount, Lord Brooke-borough, spoke as if we were being inconsistent in first shutting people up and then releasing them. What does he 950 expect us to do, keep them in for ever? This is not a very constructive remark. It is like loading a wagon; if you put something in to it you have to be able to get it out. If you put people into prison either you have to hang them or get them out at some time. The noble and learned Lord, Lord Gardiner, made clear in his Report—and he told us something of it today—that the philosophical objection to this (there cannot be many people who do not agree with him) is that there is nothing inconsistent in arresting people who are dangerous and shutting them up and then saying after a certain time, "Enough is enough; you have been in for two years. We have no reason to know whether you are less or more dangerous, but we are not going to keep you there for ever" This is the policy which Her Majesty's Government have perforce pursued.
If we kept them all in, at the speed we were putting them in until Demember, there would have been standing room only. You have to be reasonable about this. These are human beings and they change. It was also said by the noble Viscount, Lord Massereene and Ferrard, that I suggested in my letter to him that there was some influence from the family on released detainees. This is something on which one must not put too much; it is not something which is statistically demonstrable. It is the kind of impression we get from people who are moving among them. It is very important to realise that, whether or not my right honourable friend finishes with detention by Christmas, the thing which matters is whether or not he has to start it again. As things are, we are having so much greater success in bringing criminals to justice through the courts that one hopes that once one has got rid of it one might be able to survive quite bad periods ii Northern Ireland without reversing it.
That is the background to detention. The other matter which has been raised by several speakers is a rather smaller point but in a sense it is particularly difficult. That is the question of bail for the RUC. No one who is in any way responsible for administrative affairs in Northern Ireland would wish to do anything but shout "Hooray for the RUC!" We have all told them what a marvellous job they have done and I think they know that we all believe this. 951 They are actually asking for something which we do not think we can give them.
The first thing I should like to say is this. As I said to the noble Viscount earlier, there has been no single case where bail has been refused. There have been four cases where bail has been granted, so although your Lordships may say they should have it by right, at least they are getting it in the ordinary way through the High Court. Section 3 of the principal Act imposes a limitation of power to grant bail to all persons charged with scheduled offences, except those who are under 14 or who are serving members of Her Majesty's Regular Naval, Military or Air Forces. I shall not be tempted by the noble Viscount's exercise in barrack room law", if I may say so. He was most ingenious about this and I was spellbound while listening to his discussion of the various Army Acts, none of which I was familiar with—and indeed perhaps the noble Viscount was not familiar with them either until these particular matters arose. I shall have his speech photographed and sent immediately to the Secretary of State for Defence, and doubtless we shall get a satisfactory answer for him in that way—but he is not going to get one out of me!
The position is that at the moment the Armed Forces, whether or not the convention is a legal one, have the ability to say to the judge: "If you let us take this man, we promise to keep him safely and to return him to you when he comes up for trial." That is the convention. Whether it is one that is strictly legal under the Army Act, I shall not enter into. I see that we have with us an ex-Secretary of State for Defence who perhaps might be able to clear up this matter with the noble Viscount later. But the police have not these facilities. They have no organisation and they do not live in barracks but in their houses. Therefore this position does not arise. They are ordinary citizens, in the front line. We take the view that, however much we should like to do so, we cannot treat them differently from ordinary citizens. The fact that the Army can be treated differently is a very good thing and if there were some way in which the same thing could be done for the RUC I think 952 that some people would welcome it; but I do not think there is.
§ Lord BELSTEAD
May I interrupt the noble Lord very briefly? I am sorry to extend our debate but, as the noble Lord knows, for some reason it was not possible in another place for an Amendment to be put down on this point. Before my noble friend makes up his mind whether or not he would wish to put down an Amendment, I should like to make it clear that I personally agree with the Government's view and I should be very doubtful as to whether it is possible to put down an Amendment. May I ask this question. Is what the noble Lord has said agreed between the Northern Ireland Office and the RUC? Do the RUC accept in practical terms what the noble and learned Lord said in paragraph 37 is the fact; namely, that the police cannot usually arrange to keep somebody in custody in the same way as the Army?
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I do not have the answer to that question, but I will write to the noble Lord. I am quite clear that a number of people in the RUC are not satisfied with this, but whether Sir James and the powers-at-the-top will accept this, I do not know.
§ Lord BELSTEAD
My Lords, I am sorry to interrupt again. I am not asking the noble Lord whether the RUC are dissatisfied, because I realise that they would like to have a different arrangement, and I am not pushing the noble Lord on that point. What I am asking him is this: do the RUC accept, as a practical matter, that it would be difficult, if not impossible, for them to treat an RUC constable who comes into their custody in the same way as the Forces could? If the noble Lord could write to me on that matter I should be most grateful.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I can answer this point quickly. It is perfectly clear that it is impracticable because there are no premises. You cannot keep a man in a police cell for three weeks or three months. However, I will give the noble Lord a detailed answer on this. We have had a fairly long debate and I have a note of a good many points. I shall not 953 attempt to deal with them all, but I will write to noble Lords about many of them. However, I should like to make just one or two points.
First, the question of legal representation, which was raised by my noble friend Lord Kilbracken, is an important one. I think my noble and learned friend Lord Gardiner gave a complete answer to it and perhaps I need not add anything more. But either you have a trial or you do not; and if you do not have a trial you probably make things worse by looking as though you were having a trial. Ultimately, the decision to detain somebody is an arbitrary one which is made by the Secretary of State on the best advice he can get. We think it would be a complication which would detract from the streamlined system we are proposing if solicitors, and so on, were brought in.
§ Lord KILBRACKEN
My Lords, may I take up one point about that, because I understood the noble and learned Lord, Lord Gardiner, to say that they have found that the majority of detainees did not want legal representation and if they did not want it, why should they have it? I thought that might apply in some cases, but that it would not apply in a great many others. If a detainee wants to have a lawyer or a solicitor to represent him, he should have the right to do so.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I take the point, without agreeing. My noble friend also asked about its taking seven days to prepare representations. As soon as the seven days are over, the Adviser can begin examining the case and can consider the representations at any time after the expiry of the seven-day period. But there is an overall limit of 49 days, so there must be a reasonable limit on the right of a detainee to make representations. I know my noble friend will not be here at the Committee stage, but one or two of the other questions were clearly Committee points and so I will leave them for the moment. If they do not come up at Committee stage I will write to him.
The noble Lord, Lord Monson, wondered whether the new regulation which deals with the collecting of evidence against judges and similar people should 954 be extended to other civil servants. One has to draw the line somewhere, of course, because it could be extended to everybody if care is not taken, and as it is this might even have gone too far. We do not think it would be helpful to take it very much further. On Clause 14, which concerns paragraph 60 of the Gardiner Report, I think that the noble Lord has got hold of the wrong end of the stick. The object of this clause is not to be more lenient with people engaged in riotous assembly but to get at them more quickly; that is the next morning. I think I am right in saying that because there was an 18-month maximum sentence they had to go on indictment. If that is removed, they can come up the next morning at Bow Street.
§ Lord MONSON
My Lords, I entirely accept what the noble Lord has said. I was not able to get hold of a copy of the Gardiner Report until about 30 seconds before the debate.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I do not think the noble Lord has had the Report long enough to do it justice. I have dealt with a number of points and I will undertake to write to noble Lords regarding other points. We have had a long debate on this matter and there is a good deal of other business to follow; but may I just say to my noble and learned friend that I am sorry he still has a slight sense of having been treated somewhat cavalierly by the Government. I must say to him that this was not meant. I have apologised before and I will do so again. We value this document enormously. We have spent hours trying to get a fairly watertight implementation of it and I should not like to finish the day without making it perfectly clear that the Government as a whole, and all of the people who have been concerned with considering it, admire the way it has been dealt with. As the noble Lord will agree, we have met the greater number of his points. He asked me one direct and particularly awkward question on a subject upon which he and I do not see eye to eye and I will answer him very obliquely. I hope very much that we shall obtain permission to build our new prison at Maghaberry. If we do not obtain permission, we shall have to do something else. We have ideas about 955 what that "something else" will be but I have no intention of disclosing them. I am grateful for the variety of the debate which we have had and I hope the House will now approve the Second Reading.
§ On Question. Bill read 2a, and committed to a Committee of the Whole House.