HC Deb 06 March 1991 vol 187 cc378-92

12. The police shall have immediate access to a member of the security forces who has used or is reasonably suspected of having used lethal force.'.

Mr. McNamara

In Committee, the use of lethal force by the security forces was considered on several occasions. There has been a continuing debate on the issue—the matter was raised when last we had a full review of the Act in the previous Parliament. The new clause and the amendment attempt to deal with subsequent developments in the debate.

Amendment No. 39 seeks to complement the codes of practice issued under sections 48 and 49 of the Act by including guidance to the security forces on circumstances in which it is legitimate to use force. Given the controversies over the use of force by the security forces, and the implications for public confidence in the security forces, such a guide would help to clarify the nature of security force operations.

In his penultimate report, Lord Colville stated that the major difficulty for the administration of justice stemmed from deaths caused by the security forces. We have only to think of the Armagh killings and the Whiterock bookies shop case and other incidents to understand the passions and problems involved. Large sections of society believe that the security forces are immune from the law, and a number of killings by the security forces are not regarded as unavoidable or representing the legitimate use of force.

The new clause and the amendment are a response to the concern expressed by the Standing Advisory Committee on Human Rights last February. The new schedule copies the draft code of practice proposed by SACHR. It says that it is a "tentative draft" to provide a focus for proper consideration of the issue, but if the Government were to accept the principle of what we are urging we should be happy for them to produce a better draft. The key elements of the draft code suggested by SACHR are as follows. The minimum possible force should be deployed, force should be used only when it is unavoidable, and senior officers should be held responsible for the actions of their subordinates if they permit violations of the code of practice.

The first principle differs from the existing provision in so far as it replaces the concept of reasonable force with the concept of minimum force. Such a standard would facilitate public understanding of the limits of legitimate use of force by the security forces. Using force only when it is unavoidable also differs from existing practice in so far as the existing law allows for the use of lethal force to apprehend a person who cannot otherwise be arrested. The logic behind it is that the failure to arrest an individual may allow that person to escape and commit further crimes of violence at a later date. While that is understandable, the practical consequences have been damaging as it has become lawful to use lethal force to apprehend a person who, it subsequently becomes apparent, is not a terrorist. The code of practice is designed to prevent recurrence of such incidents by ensuring that firearms can be used to effect an arrest only if there is immediate danger of a grave threat to life.

The purpose of making superiors responsible for avoidable breaches of the code of practice is to provide an incentive to maintain high standards of discipline. In addition, given that the preparation of an operation by superior officers may have a substantial influence on the behaviour of subordinates during an operation, the code of practice considers the responsibility of those who plan and those who conduct operations.

Paragraph 12 of the schedule deals with a problem that has caused some concern. When members of the security forces are involved in incidents where lethal force is used, RUC officers investigating such operations have experienced some difficulty gaining access to carry out questioning. The schedule would require access to be granted, thus eliminating any suggestion that such incidents are not properly investigated by the authorities.

Lord Colville has paid great attention to this issue over several years. In it report on the concept of the taking of human life, the other place also paid attention to the proposals, some based on the Australian code of practice, made by Lord Colville. Our proposal is based essentially on the recent proposals of SACHR. The code embodies what it is seeking and what it believes, in the interests human rights, should be adopted in Northern Ireland.

Mr. Trimble

The hon. Member for Kingston upon Hull, North (Mr. McNamara) said that the schedule in the amendment setting out the code of practice is based on the tentative views of the Standing Advisory Commission on Human Rights and it says that its proposals are based in part on a draft resolution prepared by a United Nations body. That makes one a little concerned—I say a little because in some respects I support the objective behind the new clause. There is merit in having a code of guidance on the use of potentially lethal force and in spelling out in more detail the rather old terms of section 3 of the Criminal Law Act (Northern Ireland) 1967. That is the ordinary criminal law base from which the security forces operate in the use of potentially lethal force, in all circumstances, not just in the emergency provisions.

An examination of the draft code shows that there are problems, which SACHR acknowledged. Comparing its document with the yellow card, it states: the yellow card expressly permits the use of lethal force to effect an arrest of someone who has just killed or injured another person, where there is no other way to make an arrest, while the UN Basic Principles permit the use of lethal force to effect an arrest only where the person continues to present an imminent threat of death or serious injury and where less extreme means are insufficient. It should be noted that this difference is probably an accurate statement of the current judicial interpretation of the terms of section 3 of the Criminal Law Act (Northern Ireland) 1967". The code is not an accurate statement of the law.

Paragraph 7 of SACHR's report—which I think hon.

Members received—states: In the second place the UN Basic Principles include more detailed provisions in respect of the responsibility of superior officers for the actions of their subordinates. There is no such provision in the yellow card. This again reflects a distinction which is inherent in the prevailing judicial interpretation … in … section 3 of the Criminal Law Act. SACHR acknowledges that its code does not correspond with the law.

If the code were enacted, we should have to change section 3 of the Criminal Law Act (Northern Ireland) 1967. If we enacted the code at present, we would be inaccurate and would give effect to something much narrower than section 3. Under new clause 17, failure to comply with the code will be an offence punishable on conviction by imprisonment for two years. The code is inappropriate. I have great difficulty understanding how one could comply with it.

According to paragraph 3 of the proposed schedule, No live rounds are to be carried in the breech unless a weapon is about to be fired. In that way, members of the security forces will give terrorists that extra vital second or two that it takes to make a weapon ready for use. Paragraph 4 states: Firearms shall not be used against a person except in the following circumstances—

  1. (1) in self-defence or defence of others against the imminent threat of death or serious injury;
  2. (2) to prevent the commission of a particularly serious crime involving a grave threat to life".
How does one work out that the commission of a serious crime will involve a "grave threat to life"? How does one work out that there will be imminent threat of death or serious injury"? The paragraph refers to "serious" injury rather than just injury. A soldier is expected to deal with those complex issues in the agony of the moment, when a terrorist may use lethal force without the slightest compunction. Having decided that his action comes within those provisions, he is not to use force unless he gives the warning, "Army: stop or I fire", or words to that effect. The proposed schedule states that those words "are to be used". If they are not used, it will mean a failure to comply, which is an offence punishable by imprisonment for a certain term. That is not an appropriate measure.

I am not familiar with United Nations proceedings, so I do not understand why the United Nations document is only a draft resolution and did not proceed further perhaps it was because it was unrealistic. I hesitate to add to my criticisms of SACHR on other occasions, but I am not surprised that it adopted an unrealistic set of principles. SACHR does not have the competence to draw up such a code because it does not understand the position that soldiers and policemen will face. Although SACHR pointed out the difference betweent the code and the law, it did not give due weight to the fact that under the law soldiers and policemen are under a duty to arrest persons whom they believe to be law breakers. They must use such force as reasonable to achieve that arrest. The code appears to weaken the duty on the police and the Army. The net effect will be that persons guilty of crime, or those whom the security forces suspect to be guilty, will go free.

I know that tragic mistakes have been made in Northern Ireland which have affected all sides of the community. Sometimes one wonders about the mistakes that generate concern and the principles that operate in such circumstances.

10.30 pm

No one likes to see mistakes made, but they are unavoidable. The recent conflict in the Gulf has served to show that in a war, or in a situation where arms are used, mistakes will be made. When those mistakes occur, however, we must not lose sight of the fact that the ultimate responsibility for them rests with those who have created the violence. When members of the security forces act negligently and incorrectly and mistakenly kill others, we must not forget that the ultimate responsibility lies with the terrorist organisations.

Although I feel some sympathy with the concept of a code of practice, the present code of practice is not good. I do not like the provision in subsection (3) of the new clause to make that code of practice legally enforceable with criminal sanctions. For that reason, I cannot support the new clause or the schedule.

Rev. Ian Paisley

I agree with the hon. Member for Upper Bann (Mr. Trimble). If one looks at the current situation in Northern Ireland realistically, one must recognise that the schedule would put the terrorist at a tremendous advantage compared with the security forces.

I do not believe that the House appreciates the seriousness of the situation in Northern Ireland. A close friend of mine is approaching the end of his life in the Royal Victoria hospital. I cannot go to visit him without three Land Rovers of police and three Land Rovers of soldiers. I was speaking to another clergyman who also visits that hospital and he goes there in the same way. We are up against a serious situation in Northern Ireland.

Members of the security forces seek to provide protection and to defend the community against terrorism. If they were not allowed to draw their guns unless a superior officer tells them to do so, and so on, those people would have no defence and would be shot down. Terrorists will look upon the code of practice as a magna calla for success. We must be realistic.

I agree with the hon. Member for Upper Bann that there should be such a code of conduct, but it must be realistic in view of the terrorist threat. The code of practice is unrealistic. Members of the security forces may as well not be armed if they are unable to defend themselves and those who need to be defended. The code of practice envisaged in the new clause would make it impossible for members of the security forces to provide such protection from the current terrorist threat that we are up against.

Mr. Canavan

I support my hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara), who moved the new clause.

We all agree that there is far too much use of lethal force in Northern Ireland and that there is too much killing. Both sides of the House deplore the use of force by paramilitary organisations. We should also deplore the unjustified use of force by members of the security forces. Such unjustified use of force by the security forces is even worse in a sense than the use of lethal force by terrorist organisations. When the security forces resort to the unjustified use of lethal force, they are not just placing themselves at the same level as the terrorists they are supposed to be combating, but reducing if not eradicating respect for law and order. That can have serious repercussions in any society.

Sadly, over the past 20 years or more, there have been far too many instances of the use of unjustified force by members of the security forces. Hon. Members have said that mistakes are made, but we have a responsibility to try to create a legislative framework that will minimise the possibility of mistakes which may result in people being wrongfully killed. The account of former Assistant Chief Constable Stalker and his evidence points to a shoot-to-kill policy by the RUC. The Army and the Ulster Defence Regiment have killed people in circumstances which, to say the least, have been questionable.

Quite apart from those killed by the use of what might be called conventional weaponry, some people have been killed by plastic bullets fired by the security forces. We should not lose sight of that. Three or four years ago, I introduced a Bill that sought to abolish the use of plastic bullets in Northern Ireland or in any other part of the United Kingdom. At that time, the statistics showed that about 15 people had been lethally injured by plastic or rubber bullets. Most of them were children or young people who by no stretch of the imagination could have been described as suspected terrorists. Some of them were killed by plastic bullets fired at point blank range.

I do not know whether amendment No. 39 covers plastic bullets. I suspect that they might be covered, because that amendment refers to people "about to fire a weapon" and mentions "an explosive device".

Hon. Members spoke about the yellow card and the existing code of conduct, which may or may not be observed in all circumstances. It is plain that the code of practice is grossly inadequate, so we should accept the new clause and its related schedule.

Mr. Mallon

I invariably shudder when I hear the word "accident" used in relation to lethal weapons. I vividly remember an occasion when Mr. Gerry Adams spoke on behalf of the organisation that he leads after a baby had been shot in Belfast. He pontificated to the world and said there would always be accidents when firearms were used, but he offered his organisation's apologies to the baby's mother and father and to all concerned for the death of the child. That is appalling. It is also appalling to use the word "accidents", especially in relation to circumstances in which there were other alternatives.

Public concern in the north of Ireland has made a clear distinction down through the years between a soldier, perhaps under threat from a sniper or a sudden movement, acting instinctively and using his weapon, and those incidents which have become issues of great contention, almost all of which happened during a concerted effort by the armed forces—in other words, when they were involved in a specific manoeuvre which would itself have made possible an arrest with the minimum use of force, not a matter of being overpowered or of superior fire power coming from those whom the armed forces might have intended to arrest. In the real shoot-to-kill incidents, those people were unarmed.

If we look at the trend through the years, we see that not only have such incidents arisen during a manoeuvre, but they have been accompanied by erroneous intelligence. Almost invariably, when there is a controversial incident, one finds that the Army personnel involved were pumped up with adrenalin as a result of intelligence which ultimately proved faulty. I can be specific about that. We have only to look at the last three serious incidents in the north of Ireland to see that grossly faulty intelligence was at the root of them.

The problem is that, once an Army patrol is given intelligence and is primed to believe that, at a certain place and time and in a certain way, it will be facing dangerous and heavily armed people, the men in that patrol will naturally be in an aggressive frame of mind. When they are working on crucially faulty intelligence, the guilt lies with those who presented them with that intelligence and the direction under which they are operating. That is the substantial difference between what are now known in the north of Ireland as shoot-to-kill incidents and other incidents in which people have been killed as a result of other circumstances.

I remember clearly in my constituency when a bus driver was shot at the permanent checkpoint in Middletown as a result of a conversation that he was having with a member of the security forces. Does one class that as a shoot-to-kill incident? That was a tragic circumstance for that man and his family, and for the young soldier involved. But when people have been stopped and searched and it has been established that they are not in possession of weapons and within a short time and less than 100 yards they are shot dead, one has to ask substantial and serious questions. Therein lies the difference.

I accept some of the criticisms of the new clause and schedule. The hon. Member for Kingston upon Hull, North (Mr. McNamara) himself acknowledges how difficult it is to draft with a high degree of accuracy a schedule that meets every situation. Nevertheless, I support the schedule, because I do not accept the Gerry Adams thesis that in a war—we talked earlier about the use of that dangerous term—there will always be accidents. That argument plays right into the hands of people such as Mr. Adams, who spuriously apologised for the killing of a little child some years ago.

The new clause is the nearest that we have come to facing a problem that the Bill does not address, and I hope that it will be supported on the ground that a substantial change is needed.

10.45 pm
Rev. William McCrea

I oppose the new clause. We have seen tonight that there is no shortage of armchair critics who know little about facing terrorists and what it is for a young man to go out to defend the innocent people of a community and risk being shot at any and every corner.

It is easy for hon. Members who sit in the comfort of the House and do not have to share the experiences of our soldiers, UDR members, police and reserves, who have to face the terrorist threat in our community. It is disgraceful to link our security personnel and their responses to anything that has come from the lips of the hypocritical Gerry Adams. That is not worthy of any further reference.

Some hon. Members—perhaps one cannot blame them for this, because they are far removed from the situation —seem to think that we in Ulster are in the midst of a picnic rather than in the midst of cruel warfare. Irrespective of whether the Government want to face this fact, the IRA has openly declared war on the British establishment and the British Ulster people. Sinn Fein means "Ourselves Alone'—and that certainly does not mean the British Ulster man or woman.

We are facing a bloodthirsty animal in the IRA terrorist. One might also think—if one attaches any credence to some of the remarks made a few moments ago —that our security forces are on the rampage, looking for innocent victims to shoot to kill, and that they have not performed their duties with great honour and diligence. I want to place on record the fact that our security forces and the forces of the Crown have acted with great courage and exemplary restraint over the past 20 years of murder and destruction in Northern Ireland.

No doubt everyone can recount an incident in which someone has stepped outside the law—but they will have received their proper and due judgment. I wish, however, that hon. Members who are so quick to criticise and find fault were equally eloquent when it came to giving due praise to the security forces in the Province for facing the dastardly enemy in our midst.

Our security forces operate under a severe disadvantage every time they go out. Unfortunately, they are often reacting—the Government: have decided on a policy of reaction—rather than acting against the terrorists and their enclaves. The advantage is in the hands of the terrorists. For example, they have the element of surprise.

Terrorists can watch the movements of the security forces. Doubtless they can watch a young man walk up the street to go on duty. They can watch young UDR men as they leave and return to their homes and establish what time they go on duty. That has happened too often. They have been allowed to go up the road safely for as long as a year, but then they let down their guard and the IRA murders them on their way to the UDR camp or the police station. That chapter has been written over and over again.

Mr. Mallon

Will the hon. Gentleman give way?

Rev. William McCrea

In 'it moment.

We must sit back for a moment and reflect on whether we should make it more difficult for members of the security forces to carry out their duties. It is easy to say that they should have done it differently. With hindsight, it is easy to pontificate about the manner in which they should have arrested someone and to question whether minimum force was used.

The hon. Member for Falkirk, West (Mr. Canavan) talked about Stalker, but I do not remember how many times Mr. Stalker had to face an IRA bullet or bomb. I cannot recall the number of times that he was out on duty in Northern Ireland and faced terrorists on the streets. I cannot remember the number of times that he went on duty to find out the reality of the situation. If people put their minds together they will find, I think, that he was never on the streets of Northern Ireland in uniform. It was easy for him, who came from the comfort of some plush office, with his airs and graces, and had no understanding whatsoever of reality.

Hon. Members have paraded the shoot-to-kill policy in the House tonight. Yes, there is a shoot-to-kill policy in Northern Ireland. The IRA has a full-blooded shoot-to-kill policy and intends to shoot every policeman, every UDR man and every Army lad or lassie who comes to the Province. That is the reality, and there is little or no hindrance whatsover to their efforts. The House ought to give credit and honour where it is due—to members of our security forces.

In relation to the plastic bullet issue, it was suggested that no young person could be responsible for terrorist activity. If the hon. Members for Upper Bann (Mr. Trimble) and for Londonderry, East (Mr. Ross) were listening, they would find it interesting to learn that there is a new terrorist cell in our locality. We have information that those who are being trained as the major gunmen are between 14 and 16 years of age. That is a new departure. I do not know whether they cannot get older people into the IRA groups. However, it is interesting that information from the security forces shows that, in our locality, the people who are going out to pull the trigger are very young.

Mr. Mallon

I hope that I misheard the hon. Gentleman. Did he confirm that the information that formed the basis of the allegation came directly from the security forces in the north of Ireland? Is he willing to put that on record?

Rev. William McCrae

I do not think that that was what the hon. Gentleman wanted to say when he tried to intervene earlier. Let me tell him, however, that the people of Northern Ireland have often heard him parading, in the media, what he has been told by some member of the security forces. It is ridiculous for him to suggest that he alone should be allowed to hear things on the grapevine.

Mr. Mallon

Will the hon. Gentleman give way?

Rev. William McCrae

No. I have already given way to the hon. Gentleman once, and I want to finish what I am saying.

The hon. Member for Kingston upon Hull, North (Mr. McNamara) said that no one could suggest that young people would be involved in the use of plastic bullets. Does he not realise that the IRA do not care who they use as a human shield—that fancy term that was coined during the Gulf war? They do not care if the child whom they put in the front line is killed by a plastic bullet. In the past, they have been willing to put not only women and children but even their own members in the front line, as long as they benefit from the propaganda.

I vividly remember the tragic case of the two young soldiers in west Belfast—two young men in a car who thought it wiser to hand themselves over to the republicans than to draw their guns to defend themselves. They were killed. Anyone who remembers that incident will know that there was nothing pleasing in it: it was one of the most despicable, disgraceful and horrifying things that have ever been witnessed, as the films and photographs that were taken at the time will confirm. Many observers believe that those two young men died because they were afraid to break the yellow-card restrictions, fearing that, if they escaped with their lives, they would end up in court being treated as criminals.

I oppose the new clause, and I think that anyone who has any knowledge of what it is like to be a serving member of the security forces will do the same.

Mr. Stanbrook

I have two main objections to the new clause and amendment No. 39. First, if they were adopted, the substantive law on self-defence would be fundamentally and radically changed in a way that would have important consequences for our criminal law. The Opposition have cooked up an amendment which they admit is based on tentative conclusions derived from a draft document laid before the United Nations. That gives no authority to the proposition that the general law of this country should be changed. If it is to be changed—if there is anything in the contention that the existing law is inadequate or wrong—surely the matter should be properly discussed outside the House.

The opinions of military and legal experts should be obtained and, if possible, some agreement should be reached. Until that is done, it would be highly irresponsible to accept such changes to the substantive law.

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My second objection is that the new clause is rather airy-fairy. It is an idealised conception of what rules can be imposed on persons who must act in the agony of the moment. Her Majesty's forces are trained to use their weapons at such times, but no hon. Member can imagine what he would do. It is virtually impossible to lay down rules governing their behaviour in such circumstances.

Amendment No. 39 says: No live rounds are to be carried in the breech of a firearm … unless they are about to be fired. What an absurd suggestion, given the realities of war, violence and terrorism and the possibility that lurking around a corner ahead of a soldier is an armed man ready to open fire. Those rules will be imposed not on the IRA but on our representatives, who are protecting the ordinary people of Northern Ireland. It is absurd that we should say to them, "You cannot carry a live round in the breech of your gun because you have not had your superior officer's permission to do so. You must wait until you see your adversary aiming a gun at you before you are entitled to put a round in the breech of your gun."

That is so manifestly unreal that one reaches the conclusion that the Opposition have no faith in what they are doing but simply want to handicap the Government in their prosecution of the war against terrorism in Northern Ireland. For that reason, the new clause is a perfectly reprehensible idea.

Dr. Mawhinney

When the hon. Member for Kingston upon Hull, North (Mr. McNamara) moved the new clause he said that we had discussed the use of lethal force several times in Committee. It is right that we should do so again this evening because it is of considerable importance. As has been reflected in the debate, it leads to misconceptions. It is not frequently understood that split-second decisions must be taken when an incident is in progress. It also leads to the mistaken perception that there is, or has been, a shoot-to-kill policy in Northern Ireland.

I acknowledge the strength of the concern expressed about the use of firearms by the security forces and the emotiveness of the issue in parts of the community in Northern Ireland. I recognise the argument advanced by the Standing Advisory Commission on Human Rights that a code, as proposed in the new clause, would provide a clear set of rules, with statutory effect, on the circumstances in which the security forces might use firearms, thereby showing the Government's commitment to the principle that the security forces are tightly governed by the rule of law and recognising the special circumstances in which the security forces operate in Northern Ireland.

The issues involved are complex. As he did in Committee, the hon. Member for Upper Bann (Mr. Trimble), with his legal training, illustrated some of the complexities and difficulties associated with the issue and with these proposals in particular. As I said in Committee, the use of firearms and the law on the use of force are matters that go beyond the emergency provisions legislation, since they affect the criminal law as a whole. It would be anomalous, in the Government's view, to make special provision for the circumstances in which policemen might open fire in dealing with suspected terrorists, but not in a range of other circumstances. We must also consider whether it would be desirable that the law on such a fundamental matter as the use of force in Northern Ireland should be distinct from that in England and Wales. These are thus issues which take the new clause and the amendment outside the scope of the Bill.

A statutory code of practice on the use of force, if such were to be introduced, would more properly belong in the ordinary criminal law, where the law on the use of force is to be found. As I explained to hon. Members in Committee, however, the Government will keep the issues under consideration. My Department accepted the offer of the Standing Advisory Commission on Human Rights to prepare a draft code so that we could see what it might look like and whether it was feasible or practicable for such a code to be drafted.

Dr. Norman A. Godman (Greenock and Port Glasgow)

I have listened intently to the exchanges. In the analysis of a draft code of practice, will the Minister and his officials examine comparative evidence? Is it the case that such codes of practice exist in other states?

Dr. Mawhinney

I am sorry that I cannot answer the hon. Gentleman's last question. Certainly, we would want to take wide cognisance of whatever information was available to us in the drafting of such a code, were we to decide to proceed in that way.

Mr. Mallon

My question is much more fundamental. It relates to the central thrust of what the Minister has said so far. Is he of the opinion that a war is taking place in Northern Ireland?

Dr. Mawhinney

What is taking place in Northern Ireland is a lot of criminal activity by criminals, by people who are called terrorists and by thugs, but it is certainly not anything comparable to what we have just seen in the Gulf states. That was a war. I am not sure whether there is a lot to be gained from debating the semantics of the position.

We all recognise that there is the illegal use of force in Northern Ireland. The hon. Member for Mid-Ulster (Rev. William McCrea) was right. There is a shoot-to-kill policy in Northern Ireland; it is conducted by terrorists, primarily by the Provisional IRA, but also by others, including loyalist terrorists. Whether the hon. Member for Newry and Armagh (Mr. Mallon) wants to call that war is a matter for him. The House clearly understands the circumstances of what is happening in Northern Ireland and the need to address those circumstances in a way which is within the law, but nevertheless gives the security forces the opportunities to respond on behalf of the people whom they are there to serve and to protect to the maximum possible extent.

Mr. Mallon

The Minister has used the word "semantics". I agree that the debate is not about semantics. He has surely referred to the nub of the problem. He said in his answer that criminals are involved. Criminals are answerable to the law. Yet in all our debates we have the juxtaposition of one hon. Member saying that it is a war situation, the next saying that it is a matter for the ordinary law, and the next saying that it is a question of criminality. Certainly, some of the speeches made by Conservative Members show the need to make it clear that we are not talking about war. That is exactly what the Provisional IRA want us to talk about. It wants us to regard the situation as such because of the implications of that for the IRA. We are talking about trying to cope with criminal activity with the most normal law available to us.

Dr. Mawhinney

It is for right hon. and hon. Members of the House to make their own speeches. I am not responsible for the speeches of other hon. Members. I am responsible on this occasion for expressing the view of the Government. I confirm to the hon. Gentleman that we are talking precisely about the law. That is what we have before us this evening. We have before us a Bill which, subject to the wish of this House and of another place, will become the law of the land. It will become the legal framework which governs the activities of security forces, police and others, in relation to those who go about terrorising, killing, maiming and breaking the law in Northern Ireland. The Bill will be used as law within the legal system for the protection of those who live in Northern Ireland. On that the hon. Gentleman and I are in agreement.

Rev. Ian Paisley

Surely there is a distinction between dealing with ordinary criminal activity and facing up to terrorist activity. Surely the Minister agrees that in Northern Ireland we face intense terrorist activity by people who are prepared to kill by all possible means.

Dr. Mawhinney

I agree with the hon. Gentleman. If I may bring us back to the Bill, it is emergency provision legislation. It is an emergency provision for the reason that the hon. Gentleman has so eloquently stated, but it is still legislation. That is the way in which the House must proceed and the framework within which the security forces also have to proceed.

As the hon. Member for Kingston upon Hull, North said, the new clause appears similar to that which the Standing Advisory Commission on Human Rights has produced, as indeed it is. It is a useful contribution to our consideration of the issue. We have been giving our thought and consideration to that issue since we received the proposal from the commission, and our dialogue with the commission will continue—it has not ended just because we have had a suggestion from the hon. Gentleman.

The House will appreciate, however, that such issues require careful consideration. Indeed, some of the reasons why they need to be carefully considered were mentioned by several hon. Members. The consideration that the issues deserve and require will take the matter well beyond the immediate timescale of the Bill. Indeed, I understand that the commission itself said that it would have preferred to have more time to consider the proposals that it made to the Government.

Against the background that I have described, I invite the hon. Member for Kingston upon Hull, North to withdraw his new clause. It raises issues which go beyond the Bill. Therefore, and for the reasons that I have stated, the Government are unable to accept it. But I give the hon. Gentleman the assurance that we shall continue to review the position with SACHR in the weeks ahead.

Mr. McNamara

I am grateful for what the Minister has just said, but I am afraid that I am not satisfied with it. Before I press the new clause to a Division, I would like to respond to some of the points made by other hon. Members.

Part of the code would require that firearms always be made safe. That was laughed at. Should firearms be unsafe? Is that what the hon. Members for Upper Bann (Mr. Trimble), for Orpington (Mr. Stanbrook) and for Mid-Ulster (Rev. William McCrea) are saying?

I spoke about warning and said that the words "army", "police", "stop or I fire", or words to that effect, should be used. Should they not be used when the code says that security forces shall give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would expose others or themselves to undue risk or would be clearly pointless or inappropriate in the circumstances."? One cannot be allowed to get away with partial quotations. People delight in using partial quotations when they do not like a concept that is proposed. In this case, the concept is that members of the security forces who are in possession of firearms of tremendous power ought to use those firearms responsibly. Normally, the arms should be carried safely, and anyone who appears to have used a weapon wrongly should be answerable under the law. It is not good enough for the hon. Member for Upper Bann to say, "It is terribly sad if a member of the security forces negligently or mistakenly discharges a firearm and kills somebody." The hon. Gentleman used the words, "negligently or mistakenly"; I took them down. It is indeed very unfortunate if a person is killed. Victims too have certain rights.

Mr. Trimble

Will the hon. Gentleman give way?

11.15 pm
Mr. McNamara

Not at the moment.

We are not arguing that this House should give way to terrorists. Nor are we suggesting that there is equality between terrorists and the armed forces. There is no such equality. Terrorists are terrorists—people with a shoot-to-kill policy. No one should deny that for one moment. Indeed, it has been driven home by the events of the past week, but that is not what the argument is about. The argument is about the proper use of force. The security forces act in our name, under the rule of law, so their use of force must be controlled.

Mr. Trimble

The hon. Gentleman quoted me as having used the words, "negligently or mistakenly". He seemed rather surprised that I should have done so. Is he seriously suggesting that when a mistake is made—even if there is negligence—criminal sanctions should follow?

Mr. McNamara

The answer is yes. "Negligently" means without taking due care or precautions.

Mr. Trimble

And criminal sanctions should follow?

Mr. McNamara

Criminal sanctions should follow. Indeed, that is already the law.

Mr. Trimble

It is not.

Mr. McNamara

Under military law, it is a criminal offence to discharge a firearm negligently. Anyone doing so ends up in the glasshouse.

The hon. Gentleman said that we should be changing the law if we were to pass this new clause. Of course we should. We introduced the new clause because we want to change the law. It cannot be acceptable to the House that a person who cannot be charged with murder must be discharged. In respect of the use of firearms, there are different levels of culpability.

There are cases in which people kill others as a result of negligent, mistaken or careless action. In such circumstances, the crime may not amount to murder as such, but the people involved must be held responsible. Under current criminal law, that is not the case. The hon. Gentleman says that this should be part of the general law of the land rather than of emergency law, but we are concerned here with the emergency use of troops in support of the civil power. This legislation is designed to deal with that situation, and that is our reason for tabling the new clause.

Question put, That the clause be read a Second time:—

The House divided: Ayes 24, Noes 131.

Division No. 89] [11.19 pm
Canavan, Dennis Mahon, Mrs Alice
Clelland, David Mallon, Seamus
Corbyn, Jeremy Marshall, Jim (Leicester S)
Cryer, Bob Meale, Alan
Cunliffe, Lawrence Nellist, Dave
Dalyell, Tarn Prescott, John
Dixon, Don Primarolo, Dawn
Foster, Derek Skinner, Dennis
Godman, Dr Norman A. Strang, Gavin
Haynes, Frank Turner, Dennis
Home Robertson, John
Lewis, Terry Tellers for the Ayes:
McGrady, Eddie Mr. Thomas McAvoy and Mr. Harry Barnes.
McNamara, Kevin
Aitken, Jonathan MacGregor, Rt Hon John
Alexander, Richard Maclean, David
Alison, Rt Hon Michael McLoughlin, Patrick
Amess, David Malins, Humfrey
Amos, Alan Maples, John
Arbuthnot, James Mawhinney, Dr Brian
Arnold, Jacques (Gravesham) Maxwell-Hyslop, Robin
Ashby, David Mayhew, Rt Hon Sir Patrick
Baker, Nicholas (Dorset N) Miller, Sir Hal
Beggs, Roy Mitchell, Andrew (Gedling)
Bennett, Nicholas (Pembroke) Mitchell, Sir David
Bevan, David Gilroy Molyneaux, Rt Hon James
Boswell, Tim Monro, Sir Hector
Bowden, Gerald (Dulwich) Morrison, Sir Charles
Brandon-Bravo, Martin Mudd, David
Brazier, Julian Needham, Richard
Brooke, Rt Hon Peter Neubert, Sir Michael
Brown, Michael (Brigg & Cl't's) Norris, Steve
Campbell, Menzies (Fife NE) Page, Richard
Chapman, Sydney Paice, James
Chope, Christopher Paisley, Rev Ian
Conway, Derek Patnick, Irvine
Cope, Rt Hon John Pawsey, James
Davis, David (Boothferry) Porter, David (Waveney)
Day, Stephen Roberts, Sir Wyn (Conwy)
Dykes, Hugh Robinson, Peter (Belfast E)
Evennett, David Ross, William (Londonderry E)
Fallon, Michael Rowe, Andrew
Favell, Tony Sackville, Hon Tom
Forsyth, Michael (Stirling) Sayeed, Jonathan
Forsythe, Clifford (Antrim S) Shepherd, Colin (Hereford)
Forth, Eric Smith, Tim (Beaconsfield)
Franks, Cecil Smyth, Rev Martin (Belfast S)
Freeman, Roger Speed, Keith
French, Douglas Speller, Tony
Gale, Roger Spicer, Sir Jim (Dorset W)
Goodhart, Sir Philip Stanbrook, Ivor
Goodlad, Alastair Stanley, Rt Hon Sir John
Gorman, Mrs Teresa Stern, Michael
Greenway, Harry (Ealing N) Stevens, Lewis
Green way, John (Ryedale) Stewart, Andy (Sherwood)
Gregory, Conal Summerson, Hugo
Hannam, John Taylor, Ian (Esher)
Harris, David Taylor, Matthew (Truro)
Hawkins, Christopher Thompson, D. (Calder Valley)
Hayes, Jerry Thompson, Patrick (Norwich N)
Hayward, Robert Thorne, Neil
Heathcoat-Amory, David Thurnham, Peter
Howarth, G. (Cannock & B'wd) Tracey, Richard
Hughes, Robert G. (Harrow W) Trimble, David
Hunter, Andrew Twinn, Dr Ian
Irvine, Michael Viggers, Peter
Janman, Tim Walker, A. Cecil (Belfast N)
Jones, Gwilym (Cardiff N) Wallace, James
Jones, Robert B (Herts W) Waller, Gary
Kilfedder, James Ward, John
King, Roger (B'ham N'thfield) Watts, John
Kirkhope, Timothy Wells, Bowen
Kirkwood, Archy Wheeler, Sir John
Knight, Greg (Derby North) Widdecombe, Ann
Knowles, Michael Wood, Timothy
Lawrence, Ivan Yeo, Tim
Leigh, Edward (Gainsbor'gh) Young, Sir George (Acton)
Lester, Jim (Broxtowe)
Lilley, Rt Hon Peter Tellers for the Noes:
Lord, Michael Mr. John M. Taylor and Mr. Neil Hamilton.
Lyell, Rt Hon Sir Nicholas
McCrea, Rev William

Question accordingly negatived.

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