Northern Ireland (Emergency Provisions) Act 1978 (Continuance) (No. 3) Order 1985

HL Deb 20 January 1986 vol 470 cc12-21

3.8 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 14th November be approved. [2nd Report from the Joint Committee.]

The noble Lord said: My Lords, I beg to move that the draft Northern Ireland (Emergency Provisions) Act 1978 (Continuance) (No. 3) Order 1985, which was laid before your Lordships on 14th November last year, be approved. I shall then move formally the approval of the draft Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1985.

The need for temporary powers in the Northern Ireland (Emergency Provisions) Act 1978 must be seen against the current, and indeed the foreseen, security situation of Northern Ireland. I hope that at the end of my remarks your Lordships will agreee that there still is a real need for such powers.

Your Lordships will know that this year of 1986 was not one minute old before the Provisional IRA coldly and callously killed two members of the Royal Ulster Constabulary. And only last week a young man—a part-time member of the Ulster Defence Regiment—was killed by a booby trap device on his car as he was driving away from his parents' home. These two incidents are a grim reminder that, despite the pressure exerted by the security forces, the terrorist retains the ability to attack, to kill and to maim.

I have figures for deaths as a result of the security situation during 1985. They show some improvement on previous years although they will give cold comfort to the families, the friends and the loved ones of those killed. In Northern Ireland 54 people lost their lives as a result of the security situation in 1985. That was 10 fewer than in 1984. But the Royal Ulster Constabulary lost 23 members killed, equalling the highest annual total since the present troubles began.

Despite those deaths, the Royal Ulster Constabulary shows a courage and, I am sure your Lordships will agree, a dedication to the fair enforcement of the law which earns my sincere respect and gratitude, that of the Government and, I am sure, that of the whole of your Lordships' House. At this stage we must not forget the contribution which is equally made by the Army, including the Ulster Defence Regiment and the prison service. Other figures for 1985 show that the decrease in the number of deaths was matched by a more signficant reduction in the number of terrorist incidents. These were down by 18 per cent.

However, those mere statistics, which are an encouraging sign, give us no room at all for complacency. One death is one too many and, as my right honourable friend said in another place last week, terrorism at any level is quite unacceptable; and the security forces—with the full support of Her Majesty's Government—will continue to spare no effort in freeing all sections of the community from its malign effects.

We cannot let this debate pass without mentioning the security benefits which we expect to flow from the agreement. Both Her Majesty's Government and the Government of the Republic of Ireland are united in their determination to root out the terrorists and to bring them before the courts to face charges in respect of crimes which they are alleged to have committed. But security benefits can only be forthcoming if the opportunity presented by the agreement to make progress is grasped wholeheartedly by all those in Northern Ireland who are genuinely committed to the cause of peace and constitutional policies. In those circumstances, I believe that we may have some hope of achievement. We look to the representatives of constitutional nationalists in Northern Ireland to give their wholehearted support for the security forces.

In Northern Ireland it is easy to criticise the authorities, but those same critics must not hold back from recognising publicly the vital and difficult role performed by the security forces and from endorsing the even-handed enforcement of the law. Unequivocal support from the minority community would advance the goal of eradicating the terrorism from which all in Northern Ireland have suffered so savagely. However, without it, the full benefits which the agreement can bring will be much less likely to materialise. We, for our part, will continue to look to the interests of the whole community. Through the conference we hope to derive a sharper appreciation of the issues and the incidents in the security field which can harm relations between the minority community and the security forces. We shall also be using the conference to explain our position on certain security issues with a view to removing misunderstandings which may have in the past impeded the development of widespread cross-community support for the security forces in Northern Ireland.

The growth of such support, which the agreement is designed to foster, is of course as much in the interests of the Unionist community as of those of the minority. It provides the best hope of eradicating terrorism. Everyone in Northern Ireland will also benefit from enhanced security co-operation, and we have jointly put work in hand to that end. However, we really must not expect an overnight miracle. Benefits in the security field will take time to become evident and we are in no doubt that those who have the most to lose from increased security co-operation will seek to destabilise the community.

We shall be looking for every opportunity to increase the co-ordination of security activity on both sides of the border so as to reduce significantly the threat from cross-border terrorism. The meetings that have already taken place between the chief constable and the commissioner of the Garda Siochana and their respective senior officers are the first steps towards that aim. The conference will also be considering legal matters, among them being ways of simplifying the procedures for handling extradition requests and the mounting extra-territorial prosecutions.

Perhaps at this stage I may inform your Lordships that, while we are working more closely with the Irish Government on security matters, there is no change in the responsibilities of the chief constable or my right honourable friend the Secretary of State. The chief constable's operational independence in the discharge of his responsibilities is completely unaltered. If I may digress, I should like to say a few words about the very difficult job which the chief constable of the Royal Ulster Constabulary has to perform. Whatever he and his men do, they are often likely, in the view of one side of the community or the other, to be open to criticism. I believe that it is a true indication of his impartiality, and, indeed, that of the whole of his force, that this criticism has come at one time or another from both sides of the community.

Returning to the responsibilities of the Government and my right honourable friend, I should make it clear that all executive decisions about security issues in Northern Ireland will continue to be taken by Her Majesty's Government and mostly by my right honourable friend. We will consider the views put forward by the Government of the Republic alongside the views of parties both here and in another place, of the Northern Ireland Members of Parliament in another place, and, indeed Members of your Lordships' House who contribute so much from Northern Ireland. Let us also not forget the Northern Ireland Assembly. However, let me make it quite clear that we shall take the decisions—as we have always done—in the interests of all the people of Northern Ireland and of the people of the United Kingdom as a whole.

Let me briefly turn to the orders before us this afternoon. The Northern Ireland (Emergency Provisions) Act 1978 is temporary, and it is exceptional legislation. We have no desire for it to continue on the statute book a day longer than is necessary. However, as your Lordships will be aware, it provides for departures in certain circumstances from the normal procedures of British justice. However, it is consistent with the European Convention on Human Rights and the United Nations Covenant on Civil and Political Rights. Nothing would give me greater pleasure than to come before your Lordships to say that the Act is no longer necessary and that it can now be allowed to lapse. But, sadly, that is not the case. We need the Act to enable us to pursue the fight against terrorism.

The first conclusion which the late Sir George Baker reached when he reviewed the Act was that there was only limited scope for amending it. I have to say that we agree with the late Sir George in that particular respect.

So far as amending the emergency provisions Act is concerned, we intend to amend the Act and we shall certainly do so when the parliamentary timetable permits. I outlined to your Lordships the broad thrust of our proposals for amending the Act when we were debating the matter in July last year. Perhaps I may briefly remind your Lordships that we propose, when amending the Act, to recommend that it has a maximum life of five years. That will provide for major and detailed parliamentary scrutiny of it at reasonable periods.

We are also amending Schedule 4 to the Act. We have an opportunity today to amend Schedule 4 on roughly the lines which were proposed by Sir George Baker, as that can be achieved by order under Section 30 of the Act. The amendment order which we have before us today will widen the discretion of my right honourable and learned friend the Attorney-General to certify in respect of particular cases that offences should not be treated as "scheduled" offences. This extends the range of offences which could potentially be tried before a jury, and it is intended to make it possible for more cases to be tried by jury in Northern Ireland. However, the Government share Sir George Baker's view that, unfortunately, the time has not yet arrived at which jury trials could be restored for all cases involving terrorist-type crimes in Northern Ireland. Nevertheless, this amending order marks a small step in what I am sure your Lordships will feel is the right direction, and it goes as far as we can. I hope, therefore, that everyone—both in your Lordships' House and elsewhere—will recognise in this measure, limited though it must be, our readiness to match our actions to our understanding of the importance of building and maintaining public confidence in the administration of justice.

In essence, the order meets virtually the whole of Sir George Baker's Recommendations 12, 13 and 15, which were that kidnapping, false imprisonment, offences under the Firearms (Northern Ireland) Order 1981 and all scheduled offences which are triable summarily or carry a maximum sentence of less than five years should be capable of being, as we call it, "certified out". The exceptions are those offences under the firearms order and those scheduled offences which carry a low maximum penalty which are in practice only likely to be committed by persons associated with terrorists. I think your Lordships would agree that it would be pointless to give the Attorney-General a discretion to "certify out" such offences when he would probably never be able to exercise it.

The amending order does not extend the Attorney-General's discretion to cover robbery or aggravated burglary, as Sir George Baker had recommended. This does not mean that all cases involving robbery or burglary will be tried in a Diplock court as, under note 4 to Schedule 4, such offences are only scheduled offences: where it is charged that an explosive, firearm, imitation firearm or weapon of offence was used to commit the offence". In circumstances where such weapons are used, I think your Lordships will agree that it is usually very difficult to tell whether the alleged offence was committed for "domestic" or "terrorist" motives. If such offences were capable of being certified out, the Attorney-General's decisions in particular cases might be perceived as an indication that one accused person had terrorist links, which another did not. I am sure that your Lordships will be sharp enough to understand that that could prejudice the outcome of certain trials and make my right honourable and learned friend's decisions a matter of public debate. Where the decisions cannot be clear-cut it is better not to confer a discretion and to leave the mode of trial to be determined on objective criteria by reference to the nature of the offence.

For completeness I should record that the Government do not intend to accept Sir George Baker's Recommendations Nos. 16 and 17. He had recommended that the power to "certify out" offences in particular cases should be given to the Director of Public Prosecutions for Northern Ireland. However my right honourable and learned friend the Attorney-General believes it would be right to reserve this important power to himself. He can then continue to be directly answerable to Parliament on the way in which it is exercised.

The Government also take the view that, if any trial before a jury is believed to have been prejudiced by intimidation, the correct course is to abandon it and order a retrial. For the judge to dismiss the jury and continue the trial alone would easily lead to the accusation that the judge had exercised the power in order to set his views on issues of fact above those of the jury. This would bring the judicial system itself into disrepute.

I hope that I have not unduly wearied your Lordships. We have before us this afternoon one order which continues the Northern Ireland (Emergency Provisions) Act 1978 and another order which amends it. The continuance order contains the provisions which we believe are necessary to continue the fight against terrorism, and to this particular combat the Government remain totally committed. The amendment order reflects our commitment to amend the Act, wherever and whenever we can, to restore the normal procedures of British justice. However, we shall not do this at the cost of risking the lives and the welfare of the people of Northern Ireland. My Lords, I beg to move the first order standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 14th November be approved [2nd Report from the Joint Committee.]—(Lord Lyell).

3.24 p.m.

Lord Prys-Davies

My Lords, once again the time has come to renew the Northern Ireland (Emergency Provisions) Act 1978. I fear that its renewal has become almost a ritual, notwithstanding many demands from different quarters for its reform. But at least the renewal order gives us an opportunity to express our genuine sympathy with the families, Protestant and Catholic, who have grievously suffered at the hands of the men of violence. Although in Northern Ireland the violence has raged over the past 15 years, we are not left unmoved by the gatherings in the small churchyards of the Province which we witness almost weekly on our television screens.

The debate also gives us an opportunity to express our gratitude to the security forces and to the RUC, subjected as they have been to immense pressures for years, and who have borne the brunt of the violence. Therefore, we pay tribute to their courage, and in particular to the courage of their families.

There is a difference between this renewal debate and previous debates. The difference is that this debate follows the major political initiative embarked upon by the Government and aimed at tackling the root problems in the Province, so that hopefully the people of Northern Ireland may move towards stability, normality and peace—a peace which the 13 years of emergency provisions have failed to deliver. There is another difference, because we have before us not only the order for the continuance of the 1978 Act but also an order to amend in a very limited way—we would say that it is far too limited—the 1978 Act. The Hillsborough accord was a positive initiative offering a chance of progress; but we believe that if that initiative is to succeed, it must be linked to a number of other measures, one of those measures being a major reform of the Northern Ireland (Emergency Provisions) Act 1978.

Therefore, it is a disappointment that, almost two years after the late Sir George Baker presented his report on his review of the Act and the actions which he thought were needed, the Government have not as yet produced a reasonable plan and timetable of progress towards reforming the emergency provisions. We do not expect an overnight miracle, but we are entitled to expect a reasonable plan and a reasonable timetable of progress.

Northern Ireland is a relatively small province; its population is relatively small. In a sense, it is a community of communities, and a wrong to the individual is quickly perceived as a wrong against his community. Since 1973 its people and its communities have had to live with a criminal law system which in many important respects is substantially different from and less civilised than their entitlement under their common law inheritance. A radical departure from traditional standards, from traditional procedures, in the administration of justice, and a lowering of standards over a period of time in the field of the administration of justice, can be very damaging to the standing of the courts, to the community which the courts serve; and indeed it could also be damaging to the younger practitioners of the law, working as they do in a relatively small jurisdication. Of course, it can also be damaging to the individual citizen.

The basic common law criminal procedure is clear: it is arrest on reasonable grounds on evidence obtained through prior investigation. So we have the arrest, followed by a charge, followed by trial by judge and jury. That is the process which has served our forefathers well for centuries. However, in 1973 Parliament intervened to authorise in certain circumstances in Northern Ireland a radical departure from that process. It authorised arrest without reasonable grounds, to be followed by interrogation and a deferment of a charge until a confession, to be followed by trial by judge alone. For how much longer are the traditional criminal law procedures and standards that we cherish on the mainland to remain suspended in Northern Ireland?

Those who argue for continued suspension of this main procedure have, I would accept, a case which needs careful consideration. Nevertheless, is it not possible, subject to certain safeguards which it should not be beyond the wit of man to design, to begin to restore jury trials, which are after all the shield of the innocent? We are familiar with the arguments that are relied upon to resist the reform. It is said that members of the jury will be exposed to intimidation; that they will deliver perverse verdicts, or perverse acquittals.

Those were the arguments used in 1973 when the predecessor Act was introduced. But a close reading of the 1973 debates shows that those two main arguments for suspending jury trial were not supported in 1973 by conclusive statistical information. Let it be remembered—and some noble Lords will confirm this, because they were in the other place at the time—that the committee were 12 for and 12 against the suspension of jury trial. It was as close as that. The decision to suspend jury trial was taken on a casting vote of the committee chairman, who claimed that he had to follow precedent. But it may well be that jury trial offered an even older precedent. Jury trial was designed by our forefathers as a safeguard for the innocent, and we consider that its restoration in Northern Ireland, with safeguards, and possibly also on a trial basis, should be a high priority.

The non-jury trial in Northern Ireland usually works in conjunction with the evidence, usually uncorroborated, of a supergrass. Your Lordships will recall an earlier debate in the House where grave disquiet was expressed about the supergrass system. He is invariably a witness of bad character who has been involved in terrorist offences; he has turned Queen's evidence in return for immunity, or the prospect of favourable treatment and the offer of a new life. A barrister, practising on the Northern Ireland circuit, wrote recently in one of the professional journals that even if he were offered such a witness for the defence he would never call him.

Your Lordships will recall that 26 men out of 27 were recently convicted on the word of the supergrass, Harry Kirkpatrick. Is that not a subject of concern? I cannot comment on an appeal that is being heard today, but there is an appeal being heard today in Belfast of 30 people who were convicted on the evidence of supergrass Christopher Black, and whose trial commenced almost three years ago. Their appeal is being heard today. We submit that if we are to move towards the building up of confidence in the law courts, in the administration of justice, the supergrass trials must be brought to an end.

Of course many other reforms are urgently required. Will the Minister tell the House what consideration is being given to the bringing of conditions of bail into line with the Bail Act? Will the Minister assure the House that someone in Northern Ireland has by now been vested with authority to cut down the lengthy delays between arrest and trial and between conviction and appeal? I have just referred to the three-year delay between conviction and appeal in the case where Black gave evidence. Will the Minister assure the House that there is in existence a detailed and up-to-date code on the treatment of suspects and their interrogation?

I shall not burden the noble Lord the Minister with any more questions or requests for assurances, although there are many more that could be asked. But I hope that I have made the point that if the Hillsborough agreement is to be made to work there must be substantial amendments to the Northern Ireland (Emergency Provisions) Act 1978, and those amendments are not on offer this afternoon. We welcome, so far as it goes, the amending order, but your Lordships will have gathered that we consider the amendments to be marginal. The essence of the emergency provisions Act remains untouched.

The order will not satisfy the widespread concern in parts of Northern Ireland about the working of the Act. Neither will it satisfy the critics (and they are growing in number) of the system within the legal system. Of course we are glad that a few more offences are to be certified out of the Act at the discretion of the Attorney-General, but it does not go far enough. Reference has been made to the late Sir George Baker; but let it be remembered that the late Sir George Baker, after he had investigated the operation of the Act, recommended a vast increase in the number of crimes capable of being certified out.

We also recall that Baker had recommended that the power to certify out could also be given to the Northern Ireland Director of Public Prosecutions, in order to reduce delays in having to send a case to the Attorney-General in London for certification. Why has this recommendation not been accepted? Was it too radical a piece of devolution? Is it being suggested that the office of the Northern Ireland Director of Public Prosecutions is open to improper pressures? It simply is not good enough for the Minister to come before the House and say that the Attorney-General has decided to reserve this power to himself.

I conclude by suggesting that any legislation which amends the Northern Ireland (Emergency Provisions) Act must be judged by the contribution that it can make to the restoration of normality in the Province. By that test, if your Lordships agree that it be a fair test, the order before the House has little significance; but nevertheless it is a small step in the right direction.

3.40 p.m.

Lord Hampton

My Lords, as we have been reminded, it is approaching eight years since the Northern Ireland (Emergency Provisions) Act we are discussing today came on to the statute book. It is right that it should be regularly reviewed. I too join in this opportunity to pay tribute to those working away with courage for better times. Terrorist violence by paramilitary organisations, both republican and so-called loyalist, makes the continuation of the provisions of this Act unfortunately necessary. The noble Lord, Lord Lyell, fairly emphasised this point.

Since 1969, about 2,500 people have been killed as a result of terrorist activity, and conditions in the Province, we realise, are still strained. At the same time it is of vital importance that the emergency legislation does not militate against the achievement of an overall strategy for Northern Ireland based on the belief that terrorism cannot be defeated by emergency measures alone. There is a vital need to secure political settlement and allow the Anglo-Irish Agreement to play its part. Bearing all this in mind, the Alliance parties in Great Britain believe that some alterations to the emergency provisions need to be made now. The noble Lord, Lord Prys-Davies, expressed his concern about this.

My noble friend Lord Donaldson chaired a joint Alliance commission to consider, "What future for Northern Ireland?" It produced an effective report and a number of positive proposals. I am grateful to him for his lead, and I am also grateful to the noble Lord, Lord Lyell, for his introduction of these orders this afternoon.

The central principles of British justice continue to be applied in Northern Ireland. What we have to consider now is whether departures from normal judicial standards and standards of civil liberties are necessary and effective or are thought to be counterproductive in the fight against terrorism. Let us start with the Diplock courts. Unfortunately jury trial for terrorist offences is likely to be impossible for some time to come. Jurors can too easily be threatened and intimidated. I note what the noble Lord, Lord Prys-Davies, said on this point, but I disagree. This situation has led to the present arrangement by which trials are held under a single judge.

The first point I wish to raise is that it is said that because of the shortage of judges it is necessary to continue with only one judge if longer delays are to be avoided in bringing suspects to trial. But we believe that this puts too much responsibility on the judgment of that one person. In the Irish Republic they do better. In their special criminal courts, terrorist cases are heard by a panel of three members of the judiciary, one of whom may be a district judge. If a similar procedure could be introduced in the North it would help to bring the position into a welcome closer harmony with the Republic.

Here I shall briefly refer to the amendment order also before us today. The Alliance has for some time been pressing for offences to be descheduled so that non-terrorist offences can be tried before a jury. We therefore welcome this order based on Sir George Baker's recommendations of two years ago. We also believe that the list of scheduled offences should be regularly and vigorously examined.

I understand that in a recent study undertaken by the Cobden Trust it was alleged that no fewer than 40 per cent. of those tried by the Diplock courts had no apparent connection with terrorism. I wonder whether the noble Lord, Lord Lyell, would comment on that when he comes to reply. If that is true, a substantial number of cases should be taken away from the Diplock courts and it would lessen the number of cases where, as in some Gilbertian opera, the judge has to warn himself that it is dangerous to convict on the uncorroborated evidence of an informer or accomplice.

The use of so-called supergrasses may hardly seem to be an admirable procedure—once again, the noble Lord, Lord Prys-Davies, has referred to this—but such evidence is accepted in the criminal courts in the United Kingdom, with the exception of Scotland, and also in the Irish Republic. Our position is that we see no basis for denying the prosecuting authorities in Northern Ireland this weapon in the case of terrorist crime.

Sir George Baker, in his review of the emergency provisions Act, recommended that there should never be more than 20 defendants in any such trial. We share his concern, but we believe that the number of defendants at any one trial should not exceed six save in exceptional circumstances.

There are a number of other points about which we are uneasy, and again I should welcome comments from the Minister. First, I refer to the long delay that often takes place before suspects in scheduled cases are brought to trial. In 1983, the average time between remand and trial for prisoners refused bail and charged with terrorist offences in Northern Ireland was 322 days. This figure was given in a Written Answer in the Official Report of another place on 20th July 1984. Where the delay is the responsibility of the prosecution we consider that the defendant should automatically be entitled to bail after 110 days in custody, if he is charged with a scheduled offence, and be released if charged with a non-scheduled offence. This would surely lessen a not unjustified sense of grievance.

Secondly, we should consider the treatment of suspects by the security forces. We believe that a standard of reasonable suspicion rather than suspicion should be required before the special powers of arrest or search under the emergency legislation can be used. It is also particularly important in the Province that justice not only should be done but should be seen to be done. To this end we would encourage the use of closed circuit television for all interviews in a police station and the idea that every interview there should be tape recorded for use as evidence. Confessions should only be accepted if it can be shown without doubt that physical violence or the threat of it by the police has not been used.

Thirdly, we believe, in support of the seventh protocol of the European Convention on Human Rights, that there should be compensation for any conviction subsequently reversed or a pardon given. This seems a fair step following a miscarriage of justice. I shall refer briefly to the Prevention of Terrorism Act. While we consider it essential for the defeat of terrorism, it is still held in some nationalist quarters to be anti-Irish. We should therefore like to see it replaced by legislative provision jointly agreed by the British and Irish Governments and applicable in both parts of Ireland. Loyalists would of course need to be convinced that this was a practical move in cooperation against terrorists.

Whatever the noble Lord the Minister feels about the points I have raised, I hope he will agree that there are areas of controversy associated with emergency powers which deserve regular scrutiny. The Standing Advisory Commission on Human Rights, in its submission to Sir George Baker, recommended that a special select committee of the House of Commons be established for this purpose, hearing evidence in secret where necessary. However, we believe that this task would be better carried out by a select committee of a reformed Northern Ireland Assembly, provided that it was properly representative of the two communities.

Finally, we support the introduction of a Bill of Rights for Northern Ireland. We emphasise that the rights will of course be conferred on every citizen of the Province and not merely on the minority community. I understand that a Bill of Rights would be supported by Official Unionists, Democratic Unionists and the Alliance Party of Northern Ireland. Since it is also supported by the SDLP the Bill of Rights is one proposal which commands the allegiance of all the main constitutional parties of the Province. Surely this all too rare accord should not be thwarted.