The Gazette 1971

Detention without trial and proper safeguards By Professor Claire Palley, Dean of the Faculty of Law, Queen's University, Belfast.

At the height of World War II when powers of intern- ment were challenged in the courts, Lord Macmillan made it clear that "Nothing could be more unfortunate than that in a matter in which scrupulous accuracy is imperative, the impression should be created that the safeguards prescribed for the protection of detained persons are carelessly observed and administered." It is even more serious if ,as in the case in Northern Ireland today, adequate safeguards are not initially established. While so great an invasion of personal liberty as deten- tion without trial on information received may be necessary in time of emergency, and while accepting that such detention must be as effective as possible, safeguards to minimise the possibility of grave injustice must be imposed at the same time. Obviously a variety of procedures and laws apply in different countries. But surely in all parts of the United Kingdom British stan- dards of democracy dictate that the best procedural safeguards should have been adopted. In World War II better safeguards relating to internment existed in the United Kingdom than do now in Northern Ireland. In newly independent nations in Africa and Asia, where similar threats to national life have occurred, their law requires procedures concerning internment which better protect the citizen against arbitrary and un- justified detention. Even constitutions drafted by legal advisers of the Commonwealth and Colonial Office pro- vided more satisfactory procedures than those current in Northern Ireland. It is not merely democratic tradition that requires the adoption of such safeguards in the United Kingdom. Already the United Kingdom risks action in the European Court of Human Rights for breach of Article 3 of the European Convention on Human Rights which absolutely prohibits torture or inhuman or degrading treatment. Presumably this risk led to the appointment of the Parker Committee to re-examine the interroga- tion methods used by the Army so that they should conform to the Convention. Presumably it also led to the form of wording in the Compton Report which distinguished between physical ill-treatment and bruta- lity. While it is arguable that Article 3 has - been breached, it is clear, if the existing safeguards under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 are examined, that the United Kingdom is in breach of Article 5 read with Article 15 of the European Convention on Human Rights. Article 15 allows the United Kingdom Government to depart from its obligations under the Convention (the duty to secure liberty of the person) in time of emergency. But it can do this only "to the extent strictly required by the exigencies of the situation". This means that no tougher action than is necessary is permitted. Thus in the Lawless Case (1961) the European Court only up- held the Republic of Ireland's preventive detention law (the Offences Against the State Amendment Act 1940) because that law "was subject to a number of safe-

guards designed to prevent abuses in the operation of the system of administrative detention." Similar safe- guards to those in the Republic, do not exist in Northern Ireland. The operation of internment in Ireland was subject to constant supervision by the Irish Parliament. (This was also the case under Regulation 18B in the United Kingdom during the Second World War, when at least once every month the Home Secre- tary had to report his actions under the Regulations to Parliament. He also had to state the number of cases in which he had declined to follow advice of an advisory committee on internment.) Apart from regular report- ing to Parliament in the Republic, the Dail can end the operation of detention powers at any time by resolution. In contrast, the Northern Ireland Parliament neither has powers of constant supervision nor a rapid pro- cedure for ending internment by resolution. Another significant ground for the European Court's decision that the Irish detentions did not breach the Convention was that the Detention Conitfiission, esta- blished to hear appeals against detention, could give decisions binding on the Irish Government which would automatically result in the release of internees. (In France during the O.A.S. emergency the advisory body could likewise give binding decisions.) In Northern Ireland, as in the United Kingdom during the War, decisions are merely advisory and can be ignored by the detaining authorities. Thirdly, the Irish Government released prisoners who gave an oath—which was later revised to avoid affront- ing political conscience—to observe the law and refrain from illegal activity. In Northern Ireland the present authorities will release prisoners who take a somewhat similar oath, but the oath differs in that it requires internees to renounce by implication their Republican principles. For this reason some internees have refused to take the requisite oath . To avoid a breach of the European Convention, proper Parliamentary supervision must be introduced. Arguably supervision by a regional assembly (the Parlia- ment of Northern Ireland) may not suffice as it is the High Contracting Parties to the Convention who are empowered to take action derogating therefrom. Apart from the need to observe international obligations, the United Kingdom with its traditions of democracy should not be satisfied with safeguards against detention which are inferior to those of other nations. The Northern Ireland system is unique in that an order of detention is without time limit. During this indefinite period interrogation is permitted before any decision on internment is reached. In practice 28 days is usually observed as a limit, but in some cases deten- tion has been far longer. During this period detainees cannot make representation to the independent advisory committee. People are presumably arrested on reliable information and not on mere vague suspicion. (In Tanzania there is the safeguard that information lead-

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