BRITISH LIBRARY 
OF POLITICAL AND 
ECONOMIC SCIENCE 



LONDON SCHOOL OF 
ECONOMICS AND 
POLITICAL SCIENCE 



D 



fabian tract 416 

emergency powers: a fresh 


start 

contents preface1 introduction . 
2 the special powers act 
3 theoretical considerations 1' 
4 emergency powers 1! 
5 conclusion 2~ 


I jll I 



!

_, 

·


this pamphlet, like all publications of the Fabian Societ 
represents not the collective vi,ew of the Society but only th 
view of the individ:uals who prepared it. 1The responsibility c 
the Society is limited to approving publications it issue 
as worthy of consideration within the Labour movemen 
Fabian Society, 11 Dartmouth Street, London SW1 H 98~ 
November 1972 ISBN 7163 0416 


preface 

Willian1 Twining 

The problem of public ord r in an on1 r~ 
gency pose agonising choices and stir deep 
pas ions. The subject i topical and 
urg nt in Northern Ireland to-day, but it 
has a much wider signiii ance, for it 
raises basic questions about any society'sresponse to dissent and to violence. It i 
not just a problem in Ul ter : it is also a 
British problem, an Irish problem and a 
world problem. This study is intended to 
. contribute constructively to rea oned and 
informed public debate on one a pect of 
the matter: that i : what would con titute 

satisfactory legislative framework of 
p wer and safeguards to be in oked in 
·ituation where public order or internal 
, ecurity is eriously threatened ? 

he an wer outlined her is pre ented a 
a tarting point for dis us ion rather than 

a blue-print. It wa worked out by 
mem er f an informal and entirely unoffi 
ial group of law student and law 
tea her at the Queen Univer ity, Belfa t 
during the academic year 1 71-72. Our 
varied ba kground and our immediate 

, nt t inft.uenc d our approach in a 
numb r f ways: living and working in 
N rthern Ireland we were daily remind d 
f th immediacy and the human r alitie 
f the problems w w re discussing ; prof 
ional oncern led u to c ncentrate 
n the technical and practical aspect ;

eral of u were able to draw on the 
e p ri n e of other juri diction ; the at-
n...o phere f Queen reminded us of the 
lue of striving f r r lati e detachment 
e en on the mo t moti e topic · as in~ 
· ividual of quite v ri d political per


ua i n we wer ar hing for common 
ground in the b lief that this is an area 
\i h re wid r ad ons nt and onsen u 
in r pe t f prin iple ar of the essence: 
if they are 1'-'cking ny att n1pted elution 
i , in the long run almo t bound to fail. 

n en uraging f atur of thi ercise 

" that we were le t r a h agreement 
n rin ipl and t ink our difference 
n int of detail. 

draft wa,, later agr d. Having completed 
it task, the group dissolved. Apart from 
min r editorial corrections the text has 
remained unchanged. There have been 
many relevant events in Northern Ireland 
since then, but nothing has happenedwhich, in my view, invalidates the main 
arguments and suggestions presented here. 
There is still a need for an alternative to 
internment ; there is more than ever a 
need for effective methods of preventingand dealing with grievances arising out of 
the actions of the security forces ; the 
replacement of the out dated and unpopulrur 
legislation, which has, inter alia, 
acquired a great symbolic significance, is 
overdue. There i , in short, a more urgentneed than ever for a fre h start. 

eptember 1 72. 


1. introduction 
This pamphlet is concerned with the 
future. It sets out proposals for a new 
Emergency Powers (Security) Act based 
on principles which, it is hoped, will be 
acceptable to reasonable thinking people 
of widely differing viewpoints. The occasion 
for making these recommendations 
is the present situation in Northern Ireland. 
The problems of a divided community, 
the historical background to the 
present crisis and experience of the operation 
of the Civil Authorities (SpecialPowers) Act, 1922 (the Special Powers 
Act) and cognate legislation have all been 
in the forefront. But the legislative framework 
that is recommended here could be 
equally suit·able for implementation anywhere 
in the British Isles. Some of the 
technical details might vary, but the 
underlying principles and standards 
should be the same. 

It is a mark of a civilised society that certain 
standards of behaviour and restraint 
should be observed by all parties to a 
dispute and that those in authority, as 
guardians of the community's values, have 
a special duty to set an example in upholding 
such standards even under greatprovocation and stress. As Lord MacDermott 
said, in speaking of the long tJradition 
of resistance to arbitrary rule and 
oppression in the British Isles, at the University 
of Dundee in December 1971: 
" It has to be protected for the way of 
life it enshrines, but . . . the protection 
cannot be allowed to choke or cramp the 
essence of what is protected" (JuridicalReview, April 1972, p 1). It is from this 
starting point then that the difficult topic 
of emergency powers is approached-thatis to say the question of the extent, the 
manner of the exercise and the safeguards 
against abuse of extraordinary powers 
granted to a government when the public 
order or the security of the state is seriously 
threatened. 

limitations of proposals 

Clearly there are severe limits to what can 
be achieved by legislation alone. It would 
be absurd to suggest that a new Emergency 
Powers (Security) Act will strike 
at the root of "the Irish question." It is 

equally absurd to suggest that the mere 
fact of decreeing a set of formal rules and 
procedures will guarantee that arbit:Jrariness 
and abuse of power will be eliminated 
or that the rules wiH never be exceeded 
or infringed. But there are both 
symbolic and practical reasons why the 
subject is an important one in the present 
context. First, the Special Powers Act has 
become a potent symbol of repression in 
the eyes of one section of the community 
in Northern Ireland. At the same time, 
calls for the repeal of the Special Powers 
Act show a lack of realism if they impliedly 
suggest that there should be no 
legislative provision at all for emergencypowers. A new Emergency Powers (Security) 
Act, marking a fresh start, which 
clearly embodies values common to the 
various sections of the community and 
which is in accordance with the standards 
accepted as civilized by the world community, 
could serve the function of reasserting 
these values. Secondly, at a 
more down to earth level, recent events 
have exposed many defects, loopholes and 
inconsistencies in the law dealing with 
emergency powers. It gives inadequate 
guidance to the security forces, to the citizen 
and to the courts, it is silent on many 
matters and it draws not at ali on there-
cent experience of other jurisdiotions in 
dealing with the problems of internal 
security. It is crude, primitive and outdated. 
Thus, quite apart from politicalconsiderations, there are good practical 
reasons for asserting that a fresh start is 
overdue. 

the problem

Under" normal" conditions iri peace time 
in most countries certain basic assumptions 
about the scope and limitations and 
legitimacy of governmental power are not 
challenged by the vast majority of members 
of the community. Many citizens 
may oppose or dislike the current 
rulers, yet recognise that they constitute 
the legitimate government. They may disagree 
with the details of particular provisions 
relating to the maintenance of 
order, the preservation of the security of 
the state, and the control of crime, but 
they accept that some powers to secure 


I 
I 1 hese objectives are necessary and justi-
~ ed. But they may also assume that a 
mark of civilized society is that there 
must be strict limits to the scope of such 
owers and there must be standards with 
egard to the manner of their exercise. 
Such limitations on and standards for the 
~xercise of power by governments are 
ften referred to generically by the emo-
:ive, but ill-defined, phrase " the rule of 
aw." Historically the inhabitants of the 
various jurisdictions of the British Isles 
.1ave placed great emphasis on values 
:tssociated with the rule of iaw, for 
.-xample, freedom from arbitrary search 
· nd arrest, the right to a fair trial, pro-
:ection from unfair methods of interroga-
.:ion, and effective legal remedies against 
nlawful actions by the authorities. 
~erious problems arise when some of 
~hese assumptions are challenged-when, 
Eor instance, a substantial proportion ·of 
·:he population questions the legitimacy of 
:he regime in power or where the ordinary 
?OWers and techniques available to gov-
~rnment seem to be inadequate to deal 
with some challenge to public order. Both 
:hese conditions are claimed to exist in 
~orthern Ireland, with representatives of 
·different factions laying more stress on 
,~:me than on the other. In such conditions 
1ot only do the tensions between the rule 
Jf law and the ·maintenance of public
· Jrder and security become acute, but also 
many people find it diffioult to separate:heir attitude to the regime from their 
·1ttitude to the means it uses to maintain 
)fder. Thus much of the public debate on 
.rarious forms of violence that have been 
1sed recently has involved the application)f a double standard: when they use 
riolence it is evil ; when we use it, it is 
n a righteous cause. But it is both pos-
)ible and desirable to distinguish ques-
:ions about the scope of emergency)OWers from questions about the legiti-
macy or acceptability of the regime that 
will exercise such powers. Thus, in mak-
ng recommendations for an Emergency•Powers (Security) Act, we must assume 
:he legitimacy of the legisiature which 
macts it, without necessarily committing 
)Urselves to who that legislature should 
Je. In short, there are standards 
e Nhich any government should observe. 
3 
To draw a distinction between questions 
about who governs and questions about 
how they should govern, does not make 
the question of legitimacy irrelevant. For 
instance, it is a good reason for a govern-
ment to use restraint in exercising its law-
ful powers, if the implementation of such 
powers may have the effect of alienating 
a section of the community. One of the 
most cogent arguments against intern-
ment in Northern Ireland is that it mayhave contributed to the alienation from 
the existing regime of a section of the 
community and thus increased their sup-
port for the IRA. Whether this has in faot 
happened and, if so, to what extent is one 
of the differences of fact between sup-
porters and opponents of internment. 
what is an emergency? 
The situation in N orthem Ireland also 
raises the question what is an emergency.
In many jurisdictions a sharp distinction 
is drawn between " norma'l times " and 
" a state of emergency." In normal times 
the powers of government in respect of 
security are strictly limited by the consti-
tution and the law of the land. Normal 
times can probably only be defined in 
negative terms. Times are normal when a 
state is not at war and when there is no 
public emergency threatening the life of 
the nation. This formulation is recognised 
by Article 15 of the European Conven-
tion for the Protection of Human Rightsand Fundamental Freedoms, which 
states: " In time of war or other public 
emergency threatening the life of the 
nation any High Contracting Party maytake measures derogating from its obliga-
tions under this c-onvention to the extent 
strictly required by the exigencies of the 
situation, provided that such measures are 
not inconsistent with its other obligations 
under internationai law." Before special 
or extraordinary powers can be invoked 
a state of emergency has to be declared 
by the duly authorised body, often 
according to some prescribed procedure. 
Sometimes a State of Emergency can be 
declared indefinitely, sometimes it can 
only last for a limited period, subject to 
renewal. There is considerable varietyeven among common law jurisdictions as 
I 
I 1 hese objectives are necessary and justi-
~ ed. But they may also assume that a 
mark of civilized society is that there 
must be strict limits to the scope of such 
owers and there must be standards with 
egard to the manner of their exercise. 
Such limitations on and standards for the 
~xercise of power by governments are 
ften referred to generically by the emo-
:ive, but ill-defined, phrase " the rule of 
aw." Historically the inhabitants of the 
various jurisdictions of the British Isles 
.1ave placed great emphasis on values 
:tssociated with the rule of iaw, for 
.-xample, freedom from arbitrary search 
· nd arrest, the right to a fair trial, pro-
:ection from unfair methods of interroga-
.:ion, and effective legal remedies against 
nlawful actions by the authorities. 
~erious problems arise when some of 
~hese assumptions are challenged-when, 
Eor instance, a substantial proportion ·of 
·:he population questions the legitimacy of 
:he regime in power or where the ordinary 
?OWers and techniques available to gov-
~rnment seem to be inadequate to deal 
with some challenge to public order. Both 
:hese conditions are claimed to exist in 
~orthern Ireland, with representatives of 
·different factions laying more stress on 
,~:me than on the other. In such conditions 
1ot only do the tensions between the rule 
Jf law and the ·maintenance of public
· Jrder and security become acute, but also 
many people find it diffioult to separate:heir attitude to the regime from their 
·1ttitude to the means it uses to maintain 
)fder. Thus much of the public debate on 
.rarious forms of violence that have been 
1sed recently has involved the application)f a double standard: when they use 
riolence it is evil ; when we use it, it is 
n a righteous cause. But it is both pos-
)ible and desirable to distinguish ques-
:ions about the scope of emergency)OWers from questions about the legiti-
macy or acceptability of the regime that 
will exercise such powers. Thus, in mak-
ng recommendations for an Emergency•Powers (Security) Act, we must assume 
:he legitimacy of the legisiature which 
macts it, without necessarily committing 
)Urselves to who that legislature should 
Je. In short, there are standards 
e Nhich any government should observe. 
3 
To draw a distinction between questions 
about who governs and questions about 
how they should govern, does not make 
the question of legitimacy irrelevant. For 
instance, it is a good reason for a govern-
ment to use restraint in exercising its law-
ful powers, if the implementation of such 
powers may have the effect of alienating 
a section of the community. One of the 
most cogent arguments against intern-
ment in Northern Ireland is that it mayhave contributed to the alienation from 
the existing regime of a section of the 
community and thus increased their sup-
port for the IRA. Whether this has in faot 
happened and, if so, to what extent is one 
of the differences of fact between sup-
porters and opponents of internment. 
what is an emergency? 
The situation in N orthem Ireland also 
raises the question what is an emergency.
In many jurisdictions a sharp distinction 
is drawn between " norma'l times " and 
" a state of emergency." In normal times 
the powers of government in respect of 
security are strictly limited by the consti-
tution and the law of the land. Normal 
times can probably only be defined in 
negative terms. Times are normal when a 
state is not at war and when there is no 
public emergency threatening the life of 
the nation. This formulation is recognised 
by Article 15 of the European Conven-
tion for the Protection of Human Rightsand Fundamental Freedoms, which 
states: " In time of war or other public 
emergency threatening the life of the 
nation any High Contracting Party maytake measures derogating from its obliga-
tions under this c-onvention to the extent 
strictly required by the exigencies of the 
situation, provided that such measures are 
not inconsistent with its other obligations 
under internationai law." Before special 
or extraordinary powers can be invoked 
a state of emergency has to be declared 
by the duly authorised body, often 
according to some prescribed procedure. 
Sometimes a State of Emergency can be 
declared indefinitely, sometimes it can 
only last for a limited period, subject to 
renewal. There is considerable varietyeven among common law jurisdictions as 

to the condition under which an emergency 
may be declared, who may declare 
it, and the powers that are granted in such 
circumstances, but the most com·mon pattern 
is to give to the Executive the powerof proclaiming a state of emergency for a 
limited period, but to provide for some 
form of legislative control. For instance, 
in Britain the Emergency Powers Act, 
1920 (as amended by the EmergencyPowers Act, 1964), which deals with 
emergencies arising out of threats to 
essential supplies and services, provides 
that I-Ier Majesty may declare a state of 
emergency for not more than one month, 
but that Parliament, if not in session, 
must be summoned by a proclamation to 
be issued within five days of the declaration 
of the emergency and regulationmade under the proclamation of emergency 
must be laid before Parliament as 

oon as possible. 

In contrast, the Special Powers Act contains 
neither a requirement of a declaration 
of a State of Emergency nor a provision 
automatically invalidating regulations 
which have not been approved by 
the Houses of Parliament though regulations 
may be annuHed by the Governor 
on the prayer of one of the Houses if 
made within 14 days of the regulation being 
laid. In a sense Northern Ireland is 
treated as being in a permanent state of 
emergency. The Emergency Powers Act 
(NI), 1926, which corresponds to the English 
Act of 1920, contains no time limit 
on the duration of an emergency, and 
although regulations must be laid before 
Parliament there is no requirementeither of affirmation of the declaration of 
emergency or of the regulations ; nor is 
there any provision for annulment of such 
regulations on the resolution of Parliament. 



to the conditions under which an emergency 
may be declared, who may declare 
it, and the powers that are granted in such 
circumstances, but the most common pattern 
is to give to the Executive the powerof proclaiming a state of emergency for a 
limited period, but to provide for some 
form of legislative control. For instance, 
in Britain the Emergency Powers Act, 
1920 (as amended by the Emergency

Powers Act, 1964), which deals with 
emergencies arising out of threats to 
essential supplies and services, provides 
that Her Majesty may declare a state of 
emergency for not more than one month, 
but that Parliament, if not in session, 
must be summoned by a proclamation to 
be issued within five days of the declaration 
of the emergency and regulationsmade under the proclamation of emergency 
must be laid before Parliament as 
soon as possible. 

In contrast, the Special Powers Act contains 
neither a requirement of a declaration 
of a State of Emergency nor a provision 
automatically invalidating regulations 
which have not been approved by 
the Houses of Parliament though regulations 
may be annulled by the Governor 
on the prayer of one of the Houses if 
made within 14 days of the regulation being 
laid. In a sense Northern Ireland is 
treated as being in a permanent state of 
emergency. The Emergency Powers Act 
(NI), 1926, which corresponds to the English 
Act of 1920, contains no time limit 
on the duration of an emergency, and 
although regulations must be laid before 
Parliament there is no requirementeither of affirmation of the declaration of 
emergency or of the regulations ; nor is 
there any provision for annulment of such 
regulations on the resolution of Parliament. 



2. the special powers act 
The Civil Authorities (Special Powers) 
Act received the Royal Assent on 7 
April 1922. According tq its ·preamble it 
was "An Act to empower certain authorities 
of the Government of Northern 
Ireland to take steps for preserving the 
peace and maintaining order in Northern 
Ireland, and for purposes connected 
therewith." The act was necessitated by a 
decision of the British Cabinet at the end 
of January 1922 after agreement with the 
Southern Irish leaders had been reached. 
The United Kingdom Government was 
not, in view of this political settlement, 
prepared to allow the Restoration of 
Order in Ireland Act 1920 to be enforced 
in any part of Ireland. The Prime Minister 
of Northern Ireland, Sir James Craig,
was to be informed that he should make 
his own legislative arrangements to deal 
with the situation and that if militaryforce was necessary this should for the 
future be used under common law powers 
and the King's Regulations (CAB 24, 132). 
Continuing armed violence both within 
and across the border of Northern Ireland 
made it seem imperative to the 
authorities that such legislation be 
enacted. 

J n 1920 in order to authorise the use of 
wartime powers the Restoration of Order 
in Ireland Act had empowered the making 
of regulations under the Defence of the 
Realm Consolidation Act 1914, under 
which power to make regulations had 
only been conferred for the period of the 
War which had begun in 1914. The Civil 
Authorities (Special Powers) Act 1922 
differed from the Restoration of Order in 
Ireland Act 1920 in that it makes no 
reference to courts martial, the latter Act 
authorising the trial of all persons who 
had committed crimes in Ireland to take 
place by court martial. In other respects 
the Acts showed marked similarity. For 
example, the regulation making powerswere similar and the original thirty regulations 
made as a schedule to the 1922 
Act were all directly adopted from the 
Restoration of Order in Ireland Act 
Regulations (NIHC Debates, vol II, col 
90-91). 

The result of the Civil Authorities (Special 
Powers) Act and Regulations, when taken 

in conjunction with the existence of the 
special constabulary, was that, apart from 
the fact that no military courts existed, 
the Government was able to exercise 
powers of more or less the same amplitude 
as those available to it in time of 
martial law. Indeed at the end of May 
1922 it was suggested at a British Cabinet 
meeting that martial law be formallyintroduced in Northern Ireland, but 'the 
suggestion was rejected on the grounds 
that not only would such a step be taken 
as indicating lack of confidence to the 
Northern Ireland Government, but also 
because, apart . from the use of courts 
martial, martial law powers were in effect 
being exercised (CAB 23, 30 May 1922). 

Following the pattern of temporary duration 
set by the Defence of the Realm 
Consolidation Act 1920 the Civil Authorities 
(Special Powers) Act was to remain 
in force for one year. The Special Powers 
Act (the -colloquial description of the 
Act) was renewed annually from 1923 to 
1927. In 1928 the Parliament of Northern 
Ireland continued the Act in force for a 
period of five years. In 1933 a further Act 
provided that the 1922 Act should continue 
in force until Parliament otherwise 
determined. There have subsequently been 
minor amendments to the Act, but, in 
view of the likelihood of recurring violence, 
there has been no alteration in the 
general nature and scope of the powers it 
has conferred and their indefinite duration. 


the rule making power 

Section one of the Special Powers Act 
confers two powers for preserving peace 
and maintaining order, which, according 
to the decision of the House of Lords in 
McEldowney v Forde (1971, AC, 632) are 
separate and distinct. 

First, subsection one gives the " civil authority 
" power " to take all such steps and 
issue all such orders as may be necessary 
for preserving the peace and maintainingorder." The "civil authority" is, by subsection 
two, the Minister of Home Affairs,
but he may delegate this power either to 
his Parliamentary Secretary or to an 


against the regulations : possession of an 
offensive weapon, causing injury to roads 
or railways, membership of an unlawful 
organisation, wire-tapping, possession of a 
~ode or cipher, possession of information 
about the police which might be useful to 
an enemy, claiming to act under a permitwhen not so authorised, and endangeringthe safety of a person acting in the 
execution of a duty given him by the 
Civil Authority. 

operational history 

During the years 1922 and 1923 the 
~owers under the Act were widely used. 
[nternment was brought in to try to copewith the "troubles ". During this period 
wme regulations were added to those 
·lncluded in the original Schedule. When 
:he " troubles " died down the use of the 
Jowers was reduced and regulation mak,
ng also ceased. Internment however con


:inued until 1926 (NIHC Debates, vol VL, 

;ol 1969). 

fhe period of 1931-3 6 was a time of 
.ntense political activity North and South. 
Jf the four new regulations made in this 
Jeriod, three were concerned with ban"
1ing political parties. The Minister exer;
ised his other powers frequently during 
:his period. Internment was again introiuced 
around Christmas 1938 (NIHC De1ates, 
vol XXII, col 415). From the end 
)f the war until 1954, many of the pro. 
visions of the Act were not activelynvoked. Many regulations were revoked 
n the period 1949-51 , and few prosecu:
ions were brought under the Act although 
n 1950 outbreaks of isolated violence led 
:o internment being introduced for a 
:ime. (A survey of the years 1945-55 
:howed that there were no prosecutionsn the years 1945-49; 1951-53 ; 1955 and 
;omparatively few in the other years : 
~dwards, "Special powers in Northern 
:reland," 1956, Criminal Law R eview, 7.)

• :t is interesting to note when considering 
his period that in 1954 when eight men 
:vere arrested after an attack on Omaghnilitary barracks they were successfully 
>rosecuted not under the Special Powers 
~ct but under the ordinary criminal law. 
:n 1952 the Minister successfully banned 
an Orange Parade for the first time. From 
1954 onwards many of the powers given 
under the regulations which had been 
revoked in 1949 and 1951 were reintroduced 
in new form. The regulations of 
1954-55 were mainly entry and search 
powers, and one regulation banned a new 
splinter group of the Republican movement. 
After the IRA campaign was 
launched on 12 December 1956, a large 
number of regulations was made. These 
re-activated internment, detention, censorship, 
curfew, special trial procedures, the 
firearms control regulations, and banned 
two more political organisations. Regulations 
concerning movement restriction, 
arrest and control of explosives were 
made in 1957. It is these regulations made 
between 1954 and 1957 which form the 
bulk of the present schedule of the Special 
Powers Act. These regulations were supplemented 
in 1966 by three more. The 
first concerned the power to stop and 
search trains, the second two arose 
because of militant activity which had 
resulted in the formation of the Protestant 
Ulster Volunteer Force (uvF) and in a 
number of murders. The UVF was banned 
and an assembly of more than two 
persons was made illegal. The followingyear the Minister of Home Affairs banned 
Republican Clubs " or any like organisation 
howsoever described " because he 
said they were being formed to circumvent 
the ban imposed on Sinn Fein in 
1956. 

The most recent phase of regulation making 
began in 1969 following the rioting of 
July, August and September of that year.
Three regulations were made giving 
power to regulate firearms, entertainment 
and licensed premises. The two 1970 
regulations enabled the Minister to imposea blanket ban on marches and processions, 
and increased the powers of the military 
to disperse a crowd of three or more 
persons. Several regulations were made in 
1971. They imposed a duty to inform the 
authorities of any death or wounding 
caused by an offensive weapon or explosives, 
enabled the Minister to regulate 
funerals, and made it an offence to prejudice 
the preservation of peace by dressing 
or behaving as though a member of 
a quasi-military organisation. Another 


replaced the old censorship prov1s10n(regulation 8), which had been used since 
1954 to ban Republican papers, by a more 
general provision. Prosecutions under the 
censorship regulations seem at all times to 
have been rare, but a prosecution was 
recently brought, apparently for possessing 
" documents relating to the affairs of 
the IRA " against a person who had in his 
house two newspapers-Republican News 
and An Phoblact. Another regulationmade additions to the internment regulations. 
Internment was re-activated by the 
Prime Minister acting as Minister of 
Home Affairs on 9 August 1971. 

criticisms 

There has been widespread criticism of 
the Special Powers Act since 1922 when 
the Act was passed. We feel it is important 
to examine these criticisms without necessarily 
accepting their validity mainlybecause any attempt to make proposals or 
to legislate without taking into account 
the areas of discontent that have arisen 
previously may allow such discontents to 
arise again. We have not tried to be comprehensive 
but merely to examine the 
areas of criticism which we think are the 
most important. 

1. The Special Powers Act is criticised 
because of the width of the powers which 
have been given and the lack of any satisfactory 
control over the exercise of those 
powers either by the courts or by Parliament. 
Thus, as we have seen above, the 
Minister of Home Affairs is given power 
to make regulations " for making further 
provision for the preservation of the 
peace and the maintenance of order " 
and for varying or revoking any provision 
of the regulation already in existence. The 
width of such a power makes many regulations 
practically uncontestable in the 
courts. Thus, for example, in McEldowney 
v Forde (1971, AC, 632) the House of 
Lords by a majority held a regulation 
which banned c, Republican clubs or anylike organisation howsoever described " to 
be valid since it could have the effect of 
controlling subversive activity, even 
though the regulation was so vague that 
it made criminal a great deal of completely 
innocuous conduct. Another extremely 
wide provision is Section 2(4)
which provides : " If any person does any 
act of such a nature as to be calculated 
to be prejudicial to the preservation of 
the peace or maintenance of order in 
Northern Ireland and not specificallyprovided for in the regulations he shall be 
deemed to be guilty of an offence against 
the regulations." 

This seems to be a clear breach of the doctrine 
nulla poena sine lege, now embodied 
in Article 11 (2) of the Universal Declaration 
of Human Rights and Fundamental 
Freedoms 1948. This provides that "No restrictions 
shall be placed on the exercise 
of these rights other than such as are 
prescribed by law and are necessary in a 
democratic society in the interests of 
national security or public safety, for the 
prevention of disorder or crime, for the 
protection of health or morals or for the 
protection of the rights and freedoms of 
others . " 

2. It is also alleged that the discretion 
given to the Minister of Home Affairs 
under the Act has been abused. Allegations 
of lack of impartiality are often 
made. Such allegations are reinforced by 
Professor N. Mansergh's assertion that 
the Government of Northern Ireland 
" was unduly subservient to the Orange 
Order in a guarantee publicly given that 
the provisions of the Civil Authorities 
Act should not be used against any of its 
members" (Government of Northern Ireland, 
p 246) Thus the Government's 
attitude to certain marches has been seen 
to be due to this, notably the revocation 
of the ban on the 1935 " Twelfth " Orange 
Parade after the Orange Grand Master 
said he would defy such a ban (Report to 
Westminster MPs on the 1935 riots). It has 
been said that this Parade was a direct 
cause of the serious rioting which ensued 
(Report of the advisory committee on 
Police in Northern Ireland, Cmd 535, 
para. 24). The failure of the Government 
to ban the Apprentice Boys Parade in 
Derry on 12 August 1969 has also been 
alleged to have been due to lack of 
impartiality. In the opinion of the Scar-
man Tribunal the decision not to ban the 
march was justified in the light of all the 


evidence available to the Minister f 
Home Affairs at the time (Report of a 
tribunal of inquiry into Violence and Civil 
Disturbances in Northern Ireland in 1969, 

Cmd 566, April 1972). Similarly the fact 
that the Ministerial discretion was used to 
ban the 1970 March by the ApprenticeBoys under the Special Powers Act and 
not as previously under the Public Order 
Act is seen by critics of the Government 
as a decision taken to ensure that the 
supporters of the Governn1ent who broke 
the ban would not be subject to the 
mandatory prison sentence of six months 
(K. Boyle, "Minimum Sentences Act,'' 
Northern Ireland Legal Quarterly, 1970).
This would have been the case if the ban 
had been imposed under the Public Order 
Acts because by virtue of the Criminal 
Justice (Temporary Provisions) Act (NI)
1970 a six month prison sentence for 
breaking a ban on marches imposed under 
the Public Order Act was made mandatory. 
Those concerned in these decisio s 
have pointed out that it would not in the 
view of the Ministry's advisers have been 
legal to impose a ban on these processions 
under the Public Order Act in view of the 
fact that the reason for imposing the ban 
was that it would impose an undue burden 
on the security forces rather than that 
. there was an implediate threat to public 
order. The Minister's power has also been 
used, it is alleged, to suppress not onlypolitical activity which was against the 
present constitutional position of Northern 
Ireland, but also political activity 

·directed towards an amelioration of economic 
circumstances (NCCL, Report on the 
)pecial Powers Act, 1936). Examples of 
:his that have been given include the fact 
·hat in 1925 the unemployed of Belfa t 
were banned from marching on the same 
iay as the opening of the Northern Ire,
and Parliament because the Minister said 
:hat it was an attempt to intimidate the 
3overnment (Andrew Boyd, The rise of 
the Irish Trade Unions 1729-1970, p 99, 
l972); that in 1932 the Out-door Relief 
Workers were banned from demonstrating

•:ibid, p 103) and that the Act was also 
sed during the Second World War 
against industrial strikers. 

, 
L The allegation is made that certain 
:lowers given in the Regulations are ultra 

v1res the Government of Ireland Act 
1920. This argument was upheld to a 
limited extent in R v Justices of the Peace 
for the County of the City of Londonderry 
ex parte H ume et al (23 February1972) where it was decided that the 
Northern Ireland Parliament had not the 
power to give the Minister of Home 
Affairs power to authorise the armed 
forces to act under certain regulations 
since laws "in respect of" the army, navy 
or air force are excepted matters by virtue 
of the Government of Ireland Act 1920. 

4. Many of the allegations and criticisms 
concern the use of the controversial 
powers of detention and internment without 
trial. These powers are alleged to have 
been used almost entirely against one 
section of the community to an extent not 
strictly required by the exigencies of the 
situation but again as a means of suppressing 
political opposition. Internment 
has also been criticised as leading to a 
contempt for the judicial processes by its 
use against people immediately after they 
have been acquitted of criminal charges, 
or in rearresting those whose release has 
been ordered by the courts on the ground 
of some irregularity in the original arrest 
and detention (T. Hadden, "The Rule of 
Law in Northern Ireland," New Law 
Journal, 17 February, 1972, p 161). There 
have also been allegations that the threat 
of internment has been used to secure the 
compliance of people with the wishes of 
the security forces. For example it was 
alleged in Moore v Minister of Home 
Affairs in Amagh County Court, February 
1972, that the threat of internment was 
used to deter the prosecution of a civil 
action against the authorities. Other specific 
criticisms relate to the lack of adequate 
safeguards concerning the use of internment. 
The following defects especiallyhave been criticised (C. Palley, The Times, 
23 November 1971): 
(a) The lack of constant supervision by 
Parliament. 
(b) The lack of a rapid procedure for 
Parliament to end internment by resolution. 
(c) The inability of the committee under 

Judge Brown to make decisions which are 
binding on the executive. 

(d) The inability of persons detained, but 
not interned to apply for release to the 
Advisory Committee under Judge Brown. 
(e) The difficulty of finding out where 
persons held for interrogation are beingkept. 
(f) The lack of adequate compensation. 

3. theoretical considerations 
In proposing a replacement for the Specia.'lPowers Act we are suggesting that there 
are civilized limits and standards for the 
exercise of power by government, when 
public order and the security of the state 
are threatened from within. At the outset 
a sceptic may ask: "What possible basis 
can there be for such standards? Is this 
not a matter of subjective preference?" 
This is a fair question and one which admits 
of no easy answer. For example, in 
recent debates on internment arguments 
both for and against it appear to have 
been based on quite varied assumptions. 
At least four types of argument are regularly 
advanced. 

First, there are those who appear to maintain 
an absolute ethical position, sometimes 
based on natural law or natural 
rights, sometimes on bare assertion. Such 
arguments take the form that " detention 
or internment without trial by any regime 
is justified under no circumstances, without 
exception " or " the state is entitled 
to use any means whatsoever to protectitself from a ruthless enemy." It has been 
our experience that some people who 
. assert such positions are prepared, at least 

. in private, to concede that they would 
have to admit to exceptions to such propositions. 
Thus it is possible to start from 
what looks like absolutist positions on internment 
and cognate matters, and to 
a~cept after argument that in the general 
area of emergency powers the problem 
often boils down to a choice between two 
evils in respect of which it is difficult to 
maintain that one of the evils is absolute, 
but the other is not. Even where someone 
insists, after discussion, that he would 
rule out certain kinds of methods of maintaining 
order in all circumstances without 
exception, it is for him to clarify the 
scope of the means he believes to be unjustifiable. 
And exploration of this question 
may reveal that in practice the difference 
between an absolute ethical position 
and that of an ethical relativist or utilitarian 
may not be very great. 

Another basis for " civilized standa~ds " 
which is commonly invoked is the fact of 
the international acceptance of certain 
standards of civilized government. Such 
standards are, for instance, to be found in 

documents such as the Universal Declaration 
of Human Rights, 1948 and the 
European Convention for the Protection 
of Human Rights and Fundamental Freedoms, 
1950. Invocation of the European 
Convention, where applicable, is an 
especially persuasive argument in the British 
Isles, for both the governments of the 
United Kingdom and the Republic of Ireland 
are signatories to the Convention. 
This means that not only are they bound 
by international law to observe its provisions, 
but also they have publicly accepted 
the Convention as laying down firm minimum 
standards of civilized behaviour 
which they undertake to observe. We believe 
that the standards set by the Convention 
do in fact reflect a broad consensus 
in world public opinion and informed 
opinion in the British Isles and 
for this reason provide a relatively firm 
basis for proposals about emergencypowers. Accordingly we propose that an 
Emergency Powers (Security) Act should 
not only be consistent with, but should 
also reflect the underlying approach of the 
relevant provisions of the European Convention 
. 

A third type of argument involves an historical 
appeal to the traditions of the 
British and the Irish who have always 
been freedom loving peoples, and have 
set an example to the world in resistingoppression and arbitrary government.
Any provision for the protection of publicsecurity and order must be consistent with 
the spirit of these traditions. This argument 
has a strong emotional appeal to 
many and it serves as a useful reminder of 
some of the most important values which 
have provided the basis for governmentin our societies in the past. If sufficient 
people are prepared to reaffirm these 
values, then it holds out some hope for 
consensus in the future. However, the 
fact must be faced that the traditions and 
vaiues that are thus invoked are open to a 
variety of interpretations and that 
they are too general to provide precise 
guidance in determining the line to be 
drawn between legitimate governmental 
power and unacceptable breaches of the 
rule of law. 

A fourth type of argument whioh is com



12 


monly used in discussing emergency 
powers is a utilitarian argument. Such 
arguments purport to assess the acceptability 
of a particular measure by reference 
to whether its consequences are 
likely in fact to increase .or decrease the 
sum total of human happiness. As we 
shall see, it is possible to invoke such 
arguments in support of and against the 
introduction of internment on 9 August 
1971. For instance, advocates of internment 
maintain that it is both a necessary 
and efficient means of combating the IRA 
and that the pain involved in the detention 
without trial of persons suspected of 
terrorism is outweighed by the lives and 
property that have been saved by this 
means. On the other hand, some critics of 
internment maintain that it has been 
counter productive, in that it has led to 
an increase of violence and has alienated 
the minority community. 

common ground 

Disagreement between people invoking 
utilitarian arguments are often reducible 
to questions of fact. This seems to be the 
case in the present debate about internment. 
For instance, some common ground 
may be found between many supportersand opponents of internment in the present 
situation in respect of the following 
formulation: 

1. Internment without trial is an evil 
which is justified if and only if certain 
conditions are satisfied ; 
2. Deprivation of liberty is an evil but 
from the point of view of those who consider 
the existing order legitimate, threats 
to the security of the state or the disruption 
of normal life through violence or 
certain other kinds of activity are worse 
evils. Deprivation of liberty to the minimum 
extent necessary and with as few 
additional discomforts as possible may be 
justified, provided that this is the onlyfeasible means of achieving the desired 
security ; and it is likely in fact to further 
this ; and it is not likely to have secondary 
effects which are worse than the evil to be 
prevented ; and adequate safeguards are
.. 

provided to ensure that the selection and 

the treatment of detainees does not stepbeyond the bounds of the justification for 
their detention ; and effective remedies 
are available against illegal acts committed 
in implementing a policy of internment. 


We believe that orne such general formulation 
as this would be acceptable to 
many people who nonetheless disagree as 
to whether or not the decision of 9 August 
was justified. What then is the basis for 
their disagreement? One common reason 
is that many people who have taken 
stands on internment have just not 
thought the problem through. For them 
this kind of analysis may be helpful and 
may reduce disagreement. A second 
ground for difference of opinion is over 
the evaluation of the good and evil involved. 
Some may sincerely believe that 
detention without trial is an unmitigatedevil. Others may seek to balance the 
weight to be attached to loss of libertyfor a period against the risk of death or 
injury to citizens going about their business. 
Some disagreement may be eliminated 
by clarification of the nature and extent 
of the phenomena being evaluated, 
but ultimately the matter rests on subjective 
value judgments. Thirdly, peoplewith similar values may disagree about 
what the consequences are in fact or are 
likely to be. For instance some maintain 
that the IRA has in fact been strengthened 
because of internment by gaining sympathy 
and by the effects of internment on 
the internees themselves. Others maintain 
that internment has severely weakened the 
IRA and that its alienating effect is likely 
to be only temporary. Each side may produce 
elaborate statistics about the incidence 
of violence and the success of the 
security operation both before and after 
9 August, while accusing the other of falling 
into the fallacy of " post hoc, ergo 
propter hoc." When pressed honest proponents 
of both points of view may be 
forced to admit that their assessments of 
actual consequences and likelihoods are 
based at ]east as much on speculation as 
on hard evidence. Thus, utilitarian arguments 
may not settle all disagreements, 
but they may help to eliminate unnecessary 
disagreements and to identify preci 
e points of difference. They may als 


r help to establish the point that this is a 

' topic on which reasonable men can 

· honestly and honourably disagree. 

principles for legislation 

There are four principles which should 
govern the formulation of an emergency 
powers statute within the common law tradition. 
First that the provisions of anyuch legislation should involve the minimum 
necessary derogation from common 
law rights ; secondly that emergencypowers should be brought into operation 
only to the extent which is strictly required 
by a given emergency ; thirdly that 

· maximum safeguards should be provided 
in respect both of the introduction of each 
individual power and of its exercise ; and 
fourthly that all emergency powers should 
be clearly and precisely formulated so 
that the security authorities are not left to 
operate under the existing vague and 
general common law powers. 

The first two of these principles are 
closely related. If emergency powers legislation 
involving a measure of derogation. from ordinary common law rights can 
only be justified by the existence of an 
· emergency, it foJlows that only that degree 
of derogation is justified which is 
necessitated by the particular emergency. 
(" A reguJ ation which creates an offence 
o wide in Hs terms as to make unlawful 
conduct which cannot have the effect of 
endangering the preservation of the peaceand the maintenance of order is not in myview rendered valid merely because the 
description of the conduct penalised is 
also wide enough to embrace conduct 
which is reasona!bly likely to have that 
·effect." Lord Diplock dissenting in 
McEldowney v Forde, 1971 AC, 632, pp661-2.) Thus it is not the case that any 
mergency wil1 justify the suspension of 
all common law rights. The burden should 
rather be placed on those who would in


~ voke emergency powers to show that 
there is an emergency situation endangering 
the peace of the community which 
~annat be resolved without the suspension 
of specified common law rights. This can 
only be operated if there is formal provision 
for the individual implementation of 

13 


each of the powers included in an emergency 
powers act. 

The third princip~e may be justified on a 
number of related grounds. First there is 
a general argument from the conceptionof justice rooted in the common law tradition. 
The decision as to whether the requirements 
of substantive justice have 
been met is frequently determined, in 
whole or in part, by inquiring into whether 
the requirements of procedural justicehave been met. Typically, the invocation 
of emergency powers legislation is not 
motivated by a desire to deny substantive 
justice to anyone. Rather it is to remove 
certain safeguards which the common 
law has evolved to guarantee procedural 
justice. It is, therefore, clear that in common 
law jurisdictions it is assumed that 
the presence of procedural safeguards is 
conducive to the realization of substantive 
justice, and the greater the degree to 
which procedural safeguards are ignored 
the more likely it becomes that the 
ends of substantive justice will be frustrated. 
We have taken the view that this 
argument is Cl!pplicable equally to emergency 
powers as to normal police powers, 
and have thus sought in our proposals to 
introduce procedural safeguards which 
wHI help to meet the requirements of justice 
without rendering the powers which 
they qualify useless. 

Procedural safeguards in respect of emergency 
powers may also be justified on 
more pragmatic grounds. In any situation 
where a significant sector of the population 
is of the opinion that normal legal 
and political channels are no longer effectively 
open to them it is of the greatestimportance to restore their confidence in 
]awful procedures. It is not necessary in 
this context to debate the factual issue as 
to whether 1 egal and political channels in 
Northern Ireland have been and are effec-

I

tively open to the minority community. 
The argument is rather that unless all 
sections of the community believe that the 

I 

political and legal structures will protect 
their interests and impartially settle their 
disputes there is little prospect of normalising 
the situation. This applies equally to 
the introduction of emergency powers. It 
will probably not be possi,ble to convince 


everyone in the community of the need 
for emergency powers on the basis of a 
particular interpretation of the facts. But 
it may be possible to convince them at 
least that the procedure by which that factua:
l decision was made was fair and impartial 
and thus to accept the result more 
willingly. This suggests that wherever 
possible a procedure be provided bywhich the sceptical may challenge the interpretation 
of the facts adopted by the 
authorities. 

The very fact that procedural and administrative 
safeguards are built into an 
emergency powers act may in itself induce 
the authorities to adopt a cautious 
approach to the wholesale use of powers 
which have been granted to them. To take 
a simple example, if the power to intern 
without trial is permitted only on the 
condition that those interned shall be entitled 
to a standard of comfort and to 
facilities which are not generally accorded 
to convicted prisoners, this in itself may 
cause the authorities to hesitate before 
deciding to intern a very large number 
of people. Similarly the existence of a 
readily accessible procedure by which 
complaints against the abuse of discretionary 
powers may be redressed will encourage 
some measure of caution in their 
use. There is no way to ensure that discretionary 
powers will not be abused. But 
such abuses are less likely to occur if 
those who make use of the powers are 
directly accountable for their actions. 

The final principle that all emergencypowers should be clearly and precisely 
formulated is directly related to the question 
of redress. The more general a power, 
the more difficult it is to establish that it 
has been abused. Again to take a simple 
example it might be argued that in emergency 
conditions there was a common 
law right to impose a curfew or to detain 
suspected insurgents for questioning for 
a reasonable period. A well drafted emergency 
powers act, however, will typically 
set precise limits on any such power to 
impose a curfew or to detain for questioning, 
and will thus both set a standard for 
the security authorities and also facilitate 
an aggrieved person in seeking redress 
where those standards are infringed. 

'The fundamental justification for the 
adoption of all these principles, however, 
is that if they are ignored the effect of 
emergency powers legislation is likely to 
be the arbitrary exercise of power and the 
intimidation of a disaffected minority in 
the Northern Ireland context. Only if the 
principles are accepted are those concerned 
likely to use legal rather than violent 
avenues of protest and complaint.
The way to reintegrate a disaffected 
minority is not to remove all procedures 
through which they can challenge the 
legitimacy of the authority exercised over 
them, but to provide an avenue for obtaining 
satisfaction so that they are less 
likely to support those who would resort 
to gelignite. Civil order obtained through 
intimidation rather than integration will 
ensure the continuing need for emergency 
powers. The objective of introducingemergency powers is rather to create a 
situation in which they are no longer re


quired. 


4. emergency powers 
The application of these general principles 
to each of the powers which the 

·executive may claim to be necessary or 
desirable in dealing with an outbreak of 
subversion or other violent political activity 
and their reduction to statutory form 
is discussed below under various different 
headings. 

Powers under all these heads should not 
, necessarily be included in any emergency 
powers legislation, nor should they all 
be granted to the authorities in the special 
conditions prevailing in N orthem Ireland. 
But it is desirable to set out as comprehensively 
as possible the arguments for 
and against the provision of the full range 


· of powers and procedures for dealingwith an emergency which have been applied 
in other common law jurisdictions,
and also to give some account of the wayin which these powers might be reduced 
to statutory form. 

This list of heads for discussion is restricted 
to powers designed to deal with 
, deliberate subversion of a violent nature. 
We are aware of the fineness of the line 
between deliberate violence of this kind 
and that which may arise out of civil 
commotion and some forms of allegedly

·non-violent political protest, and of the 
special need for controls over " provocative 
" demonstrations and processions in 
Northern Ireland. But though there maybe some overlap in the powers which the 
authorities may reasonaJbly demand to 
deal with these two forms of political violence, 
we feel that a very clear distinction 
should be made between powers to deal 
with deliberate and violent subversion on 
the one hand and outwardly peaceful protest 
and civil disobedience on the other. 
The general issues which arise in connection 
with the control of public meetings, 
processions and other forms of 
peaceful protest and demonstration are 
therefore discussed separately ·below. 


It is established law in common law 
jurisdictions that where a situation of 
armed insurrection exists the forces of 
the Crown may take the law into their 

own hands by establishing military courts 
or even in extremis resorting to summaryexecution of insurgents or their supporters. 
It is usual in such cases for the authorities 
to make a declaration of martial 
law but legally this is unnecessary in that 
it is the existence of a situation in which 
the ordinary courts of the land cannot 
operate effectively or at all rather than 
any formal declaration which justifies the 
resort to extra-legal procedures and sanctions. 
Furthermore the implementation of 
martial law, whether declared or not, does 
not as is often assumed constitute a total 
suspension of the common law. The position 
is rather that the exigencies of the 
situation may be deemed at common law 
to justify what may be thought of as 
actions by way of self-help or self-defence 
on the part of the authorities. 

These actions may therefore be called in 
question after the event in the courts 
which will determine in any case raised 
before them whether or not the preciseprocedures and sanctions used 1by the 
authorities or the precise degree of force 
used by individual members of the armed 
forces were or were not justified in all 
the circumstances ; if they are not found 
to have been justified the courts will apply 

jl

the ordinary sanctions by way of damages 
or criminal penalties. In practical terms, 
however, subsequent review of the behaviour 
of the authorities under martial 
law conditions is usually excluded by the 
enactment of a statute of indemnity granting 
retrospective or prospective legal immunity 
to all persons acting on behalf of 
the authorities against any legal proceedings 
arising out of their treatment of those 
suspected of terrorist activities or sympathies. 


There has to date been no declaration of 
martial law in the current Northern Ireland 
crisis, and no attempt to introduce 
a statute of indemnity, either at Westminster 
or at Stormont. (The Northern 
Ireland Act 1972 does explicitly authorise 
the Northern Ireland legislature to introduce 
a measure of indemnity in respect 
both of its own security forces and of 
the armed forces of the Crown.) It is 
nonetheless arguable that some of the 
activities of the security authorities have 


16 


only been legally justifiable either on the 
grounds that some form of martial law 
might be deemed to be in force, or on 
the basis of the residual common law 
powers of military intervention to preserve 
public order or to prevent serious 
injury to persons or to property. The declaration 
of a curfew by the militaryforces in bhe Lower Falls area in July 
1970, for instance, was subsequently upheld 
in a magistrate's court as a reasonable 
exercise of common law powers in 
an emergency situation. Furthermore in 
the case of some of the shooting incidents 
involving the security forces, even 
if the precise instruction of the " yellow 
card" issued to each individual soldier, 
which is a broadly accurate statement of 
the common law powers of any citizen, 
had not been observed it would he open 
to a court to hold that it had no jurisdiction 
to hear any action against the soldier 
concerned on the ground that a state of 
martial law existed. 

The law in this sphere is not clearlysettled. Many of the cases are outdated 
and vague, and an overall review of the 
position is long overdue. (See for example

Marais v General Officer Commanding, 
1902, AC, 109; R v Strickland 1921, 2, IR, 
317, Wright v Fitzgerald, 1799, 27, St Tr,
765, Higgins v Willis, 1921, 2, IR, 386,
R v Allen 1921, 2, IR, 241, Egan v Mac-
ready, 1921, 1, IR, 265, Re Clifford and 
0'Sullivan, 1921, 2 AC, 570, see generally, 
18, LQR, 117, 133, 152 (1902), and R. F. 

V. Heuston, Essays in constitutional law, 
pp 150-158 for a discussion of the Irish 
decisions on martial law.) The line of 
argument that martial law is in force,
however, has not been relied on by the 
security authorities either on a political 
or a legal level. In most cases explicitreliance has been placed on the powers 
conferred on the security forces, both civil 
and military, by the Special Powers Act 
and Regulations thereunder. Thus when 
certain of these regulations were held by 
the Northern Ireland Divisional Court to 
be ultra vires the Northern Ireland legislature 
immediate action was taken by the 
British Government in the Northern Ire-
I 
, land Act 1972 to restore the position to 
what it was generally believed in Whitehall 
to have been prior to that decision. 

(The Queen v The Justices of the Peace 
for the County of the City of Londonderry, 
ex parte Hume et al., Queen's 
Bench Division (Crown Side) Divisional 
Court, 23 February 1972.) We acceptthat this general approach is the correct 
one in all the circumstances. To rely on 
martial law powers of arrest and search 
in a situation when the ordinary courts 
and legal processes were still very clearly 
operating would be to expose the armed 
forces to a wholly unacceptable degree of 
uncertainty as to the legality of their 
activities. In addition the peculiar circumstances 
of the Northern Ireland situation 
demand a level of clarity and certainty in 
the extent of the emergency powers in the 
hands of the authorities which cannot be 
achieved by reliance on common law or 
martial law powers. We have thus rejected 
the argument that common law and 
martial law powers are sufficient to deal 
with any emergency, and have accepted 
that emergency powers legislation is 
necessary. 

declaring a state of 
emergency 

In many countries where there is a written 
constitution conferring fundamental rights 
on its citizens there is also provision for 
the declaration of a state of emergencyunder which some or all of those fundamental 
rights may be suspended or revoked. 
Sin1ilarly under most international 
conventions guaranteeing fundamental 
individual rights, such as the European 
Convention on Human Rights, there is 
provision for the suspension of some of 
those rights by derogation on the part of 
the signatory country in a state of emergency. 
In most countries where this type 
of constitutional guarantee is adoptedthere is some formal control over the 
declaration of a state of emergency by 
the executive either by legislative or 
judicial organs. The Federal Constitution 
of Malaysia is an instance of legislative 
control. the Constitution provides for a 
Proclamation of Emergency by the King 
(the Yang di-Pertuan Agong) where the 
security or economic life of the Federation 
is threatened; the King may then 
issue ordinances of any kind which shall 
be valid regardless of any inconsistency 


with other provisions of the Constitution 
·(article 150); but any such proclamation 
may be annulled by resolution of both 
houses of the legislature ; the legislaturemay also circumvent this procedure by 
the enactment of measures reciting the 
objective of containing organised violence, 
disaffection, hostility between races, the 
alteration by unlawful means of legal. institutions, or the security of the Federation, 
which overrides any other constitutional 
guarantees and which may not be 
contested in any court (article 149). 

Again, under the Anglo-Rhodesian settlement 
proposals (Cmnd 4835, 1971) a 
·_ reclamation of a state of public emergency 
will lapse if it has not been ap:)
roved by resolution of the House of 
Assembly within 7 days if the House is 
iitting, or within 30 days in any other 
:ase. Furthermore, the House may at any:ime resolve that a declaration of emer~
ency should be revoked and if such a 
esolution is approved, the President shall 
. forthwith revoke the declaration (Rhoiesian 
Constitution, 1969, section 61.) 

.""'imilarly under the Irish Offences Against 
.he State Act 1940, which authorises the 
· .nternment of individuals without trial, 
Jrovision is made for a prior proclama:
ion that the implementation of that 
Jower is necessary to secure public peace 
.tnd order ; any such proclamation how.
ver may be annulled by resolution of 
·)ail Eireann upon which the power to 
ntern lapses immediately (section 3); in 
his case there is no exclusion of judicial 
·eview, so that an application could pre:
umably be made to the courts to declare 
he Proclamation invalid as having been 
· nade in bad faith or on wholly un·
easonable grounds. The best example of 
mrely judicial review, however, is that 
mder the European Convention on 
-Iuman Rights: in the Lawless Case 
1957) the European Court held that 
hough the introduction of powers of 
nternment in the Republic of Ireland had 
1een justifiable in all the circumstances, 
he grounds for any derogation from the 
~onvention could be inquired into by the 
~ourt and that if they were found to be 
rradequate the derogation and any inringement 
of individual rights under it 

would be deemed to be a breach of the 
Convention. 

In Britain this form of legislation is not 
usually adopted in view of the absence of 
a written constitution and the doctrine of 
parliamentary sovereignty under which 
the government of the day may at anytime press through an emergency statute 
providing powers to deal with any security 
situation which may arise, as in the 
Defence of the Realm Act 1914. But the 
proclamation system has been adoptedunder the Emergency Powers Acts 1920 
and 1964 for emergencies resulting from 
industrial action, and any such declaration 
is subject to annulment by a negativeresolution in either House. 

In Northern Ireland the above approach 
has been pushed to its furthest extent in 
security matters by the enactment of permanent 
security powers under the SpecialPowers Act. This statute could at any time 
have been repealed by act of the Stormont 
Parliament, or indeed by the Westminster 
Parliament, and regulations issued 
under the Acts could have been annulled 
by the Governor if within 14 days of the 
laying of the regulation before Parliament, 
one of the Houses prays that it be 
annulled. But in the special circumstances 
of more or less permanent one party rule 
this was not an effective safeguard. The 
fact that the legislature effectively transferred 
the power to legislate in security 
matters to the executive in so far as is 
possible under British constitutional doctrine 
is one of the major complaints 
against the Act. In addition the possibility 
of effective judicial review on the ground 
of excess of jurisdiction by the executive 
has been largely negated by the decision 
of the House of Lords in McEldowney v 
Forde (1971, AC, 632) that a regulation(24a) banning all "republican clubs or 
any like organisation howsoever described 
" was not an unreasonable use of 
the power to make regulations for peace 
and order within Northern Ireland. 

In a situation where there is a divided 
community, as in Northern Ireland, it 
would seem that there is a strong case for 
imposing more effective controls over the 
initiation of emergency powers. The form 


of control depends largely on the wider 
political decision as to the allocation of 
security powers over Northern Ireland. 
If a new Emergency Powers (Security)
Act is enacted for the whole of the 
United Kingdom, as suggested below, 
then a simple legislative control requiring 
the ratification at Westminster of the 
declaration of an emergency within 
Northern Ireland might be acceptable.
But if power of control over internal 
security is left in the hands of the executive 
within the context of a Northern 
Ireland legislature, then a simple legislative 
safeguard of this kind would not be 
sufficient given the history of sectarian 
politics within the Province. There are 
two alternatives which would provide an 
additional safeguard in this context. First 
the ratification of a declaration of emergency 
could be made dependent on the 
vote of at least two thirds of all elected 
members, whether present or not, so that 
a simple majority governing party could 
not on its own ratify a decision of its own 
executive. Secondly control might be 
given to a judicial review body with full 
power to hear the evidence from the 
security authorities and to determine 
whether the declaration of the emergency 
was in all the circumstances justified. This 
form of control would not be likely to be 
acceptable within a sovereign state such 
as the United Kingdom, but might be 
workable in the Northern Ireland context 
given the possibility of a constitutional 
settlement guaranteed by both the 
United Kingdom and the Republic of 
Ireland. 

If a settlement of this kind were made, or 
if a more far reaching form of condominium 
by the United Kingdom and the 
Republic of Ireland over Northern Ireland 
were instituted, then the appointment 
of a judicial review body with 
representatives of both guaranteeingpowers and perhaps a Commonwealth or 
European president would be a convenient 
means of securing control over the declaration 
of an emergency. Any such 
declaration by the executive however 

. ' 

constituted, would then be referred automatically 
to the review body and the 
emergency powers conferred under it 
would lapse if the declaration were not 

confirmed by the review body within the 
specified period of time. 

Further provision is also required to 
control the termination of the emergency.
The simplest formulation in this context 
is probably to restrict any declaration to 
a period of six months or a year, and to 
impose the same controls over the extension 
of a declared emergency as over its 
initiation. 

emergency offences 

It is implicit in the declaration of an 
emergency and the creation of emergency 
powers that the ordinary processes of the 
criminal law are inadequate to deal with 
the situation. The bulk of emergencylegislation has typically dealt with powers 
of arrest and search and of preventivedetention. But this emphasis should not 
exclude consideration of the creation of 
emergency offences which either extend 
the ambit of criminal conduct or permitsome derogation from the ordinary procedural 
and evidential rules governingcriminal trials. This approach has particular 
advantages in the Northern Ireland 
situation in that preventive detention or 
internment is now a highly emotive issue 
on which it is virtually impossible to 
reach a compromise agreement between 
representatives of the different groups.
More generally the creation of new 
offences designed specifically to deal with 
those involved in subversive movements 
has the advantage that if there is a resolution 
of the political issues which occasioned 
a particular emergency, the declaration 
of an amnesty for all those convicted 
of offences under the emergencylegislation is made administratively and 
psychologically easier. 

Existing criminal law makes provision for 
the conviction of those involved in certain 
types of subversive activity over and 
above the ordinary range of criminal 
offences dealing with injury to personsand damage to property through the 
common law offences of treason and 
sedition. In broad terms treason covers 
any attempt by force or other illegal 
means to overthrow the government of 


the state, and sedition the encouragement 
or incitement of any such attempt by9ublic speeches or other forms of propa-
ganda. There is ample precedent for the 
Jse of these offences against the leaders 
f movements in Ireland in the course of 
the nineteenth century. But there are 
~erious drawbacks in relying on these 
...ommon law offences. As in tlie case of 
lllartial law there is no clear understand-
ng as to the precise extent of the law, 
and there is a natural tendency to regard.he offences of treason and sedition as 
,..estricted to the leaders of a particular 
novement, and a consequent likelihood 
Jf acquittal if they are employed against 
:hose lower down in the hierarchy of the 
t novement. The common law offence of 
. ;onspiracy does permit proceedings to be 
Jrought against such persons against 
f Nhom there is no proof of active partici-
Dation in individual attacks on personsJr property, but a conviction for such a 
;harge requires direct proof of the in-
mlvement of those charged in the plan-
ling or presentation of those individual 
ilttacks. And since direct evidence of this 
·dnd is not easy to obtain, there may be 
10 ready means of bringing proceedings 
:tgainst those in middle and lower com-
.~and positions in subversive organisa-
.tons. 
JtJ.e solution to this dilemma is to make 
nere membership of certain organisations 
llegal as discussed in the next section. 
But there may also be advantages in the 
~nactment of offences covering the broad 
·ange of subversive activity in more spe-
;ific terms than under the existing offences 
Jf treason and sedition. The type of acti-
vity which might be specified in this way 
· Nould ·be the promotion or incitement of 
:he use of violence against persons or 
Jroperty, and the raising or training or 
rganisation of groups or individuals for 
mch purposes (see below). Such activities 
:tre in theory covered by the existing com-
non law offence of incitement and by the 
sections of the Public Order Acts dealing 
Nith para-military organisations, but an 
~Xplicit prohibition under emergencyegislation would allow them to be dealt 
Nith more directly and also, as discussed 
:>elow, for certain changes in procedural 
ind evidential rules to be made to per-
19 
mit a more effective balance between 
protecting the innocent and convictingthe guilty in the special conditions 
of intimidation or communal division 
which may prevail. 
the proscription of illegal 
organisations 
The proscription of subversive or anti-
government organisations has long been 
the first line of attack adopted by the 
authorities in emergency situations. The 
formulation in the Special Powers Act is 
typical of many other jurisdictions, in 
giving absolute discretion to the execu-
tive to ban any organisation, membership 
of which thus becomes in itself an offence. 
The advantage of this st_rategy from the 
point of view of the authorities is clear, 
in that no evidence of illegal activity 
other than membership of the proscribedorganisation need be sought. But the dan-
gers of abuse are equally clear in that the 
power may be used to suppress legitimate 
political opposition to the existing gov-
ernment by those committed to non-
violent or constitutional methods of pro-
test and opposition. This point is especi-
ally relevant in Northern Ireland where 
alJ .republican organisations have been 
regarded by the authorities as subversive 
regardless of their stance on the methods 
to be employed in the pursuit of their ob-
jective of the unification of Ireland. 
Nevertheless, we recognize that there is a 
purpose in 'banning subversive organisa-
tions in that this makes it possible for the 
authorities to hamper their activities and 
to bring charges against their officers and 
members. But if the executive is given a 
discretionary power to ban named or-
ganisations this should not be unrestricted. 
Only those organisations which engage in 
or incite violent subversive activity to 
accomplish political ends should be sub-
ject to the executive ban. Organisationswhich disagree with governmental poli-
cies 1but which advocate change through 
constitutional processes should not be 
subject to a ban. To ensure that this prin-
ciple is adhered to the grounds for a de-
claration of illegality should be clearly 
formulated and provision made for re-
view in the courts. The provisions of the 
the state, and sedition the encouragement 
or incitement of any such attempt by9ublic speeches or other forms of propa-
ganda. There is ample precedent for the 
Jse of these offences against the leaders 
f movements in Ireland in the course of 
the nineteenth century. But there are 
~erious drawbacks in relying on these 
...ommon law offences. As in tlie case of 
lllartial law there is no clear understand-
ng as to the precise extent of the law, 
and there is a natural tendency to regard.he offences of treason and sedition as 
,..estricted to the leaders of a particular 
novement, and a consequent likelihood 
Jf acquittal if they are employed against 
:hose lower down in the hierarchy of the 
t novement. The common law offence of 
. ;onspiracy does permit proceedings to be 
Jrought against such persons against 
f Nhom there is no proof of active partici-
Dation in individual attacks on personsJr property, but a conviction for such a 
;harge requires direct proof of the in-
mlvement of those charged in the plan-
ling or presentation of those individual 
ilttacks. And since direct evidence of this 
·dnd is not easy to obtain, there may be 
10 ready means of bringing proceedings 
:tgainst those in middle and lower com-
.~and positions in subversive organisa-
.tons. 
JtJ.e solution to this dilemma is to make 
nere membership of certain organisations 
llegal as discussed in the next section. 
But there may also be advantages in the 
~nactment of offences covering the broad 
·ange of subversive activity in more spe-
;ific terms than under the existing offences 
Jf treason and sedition. The type of acti-
vity which might be specified in this way 
· Nould ·be the promotion or incitement of 
:he use of violence against persons or 
Jroperty, and the raising or training or 
rganisation of groups or individuals for 
mch purposes (see below). Such activities 
:tre in theory covered by the existing com-
non law offence of incitement and by the 
sections of the Public Order Acts dealing 
Nith para-military organisations, but an 
~Xplicit prohibition under emergencyegislation would allow them to be dealt 
Nith more directly and also, as discussed 
:>elow, for certain changes in procedural 
ind evidential rules to be made to per-
19 
mit a more effective balance between 
protecting the innocent and convictingthe guilty in the special conditions 
of intimidation or communal division 
which may prevail. 
the proscription of illegal 
organisations 
The proscription of subversive or anti-
government organisations has long been 
the first line of attack adopted by the 
authorities in emergency situations. The 
formulation in the Special Powers Act is 
typical of many other jurisdictions, in 
giving absolute discretion to the execu-
tive to ban any organisation, membership 
of which thus becomes in itself an offence. 
The advantage of this st_rategy from the 
point of view of the authorities is clear, 
in that no evidence of illegal activity 
other than membership of the proscribedorganisation need be sought. But the dan-
gers of abuse are equally clear in that the 
power may be used to suppress legitimate 
political opposition to the existing gov-
ernment by those committed to non-
violent or constitutional methods of pro-
test and opposition. This point is especi-
ally relevant in Northern Ireland where 
alJ .republican organisations have been 
regarded by the authorities as subversive 
regardless of their stance on the methods 
to be employed in the pursuit of their ob-
jective of the unification of Ireland. 
Nevertheless, we recognize that there is a 
purpose in 'banning subversive organisa-
tions in that this makes it possible for the 
authorities to hamper their activities and 
to bring charges against their officers and 
members. But if the executive is given a 
discretionary power to ban named or-
ganisations this should not be unrestricted. 
Only those organisations which engage in 
or incite violent subversive activity to 
accomplish political ends should be sub-
ject to the executive ban. Organisationswhich disagree with governmental poli-
cies 1but which advocate change through 
constitutional processes should not be 
subject to a ban. To ensure that this prin-
ciple is adhered to the grounds for a de-
claration of illegality should be clearly 
formulated and provision made for re-
view in the courts. The provisions of the 

Offences Against the State Act 1939 of 
the Irish Republic are a good example.
This provides that " any organisationwhich: (a) engages in, promotes, encourages 
or advocates the commission of 
treason or any activity of a treasonable 
nature, or (b) advocates, encourages or 
attempts the procuring by force, violence 
or other unconstitutional means of an alteration 
of the constitution, or (c) raises 
or maintains, or attempts to raise or maintain 
a military or armed force in contravention 
of the constitution or ·without constitutional 
authority, or (d) engages in, 
promotes, encourages, or advocates the 
commission of any criminal offences or 
the obstruction of or interference with 
the administration of justice or the enforcement 
of the law, or (e) engages in, 
promotes, encourages or advocates the 
attainment of any particular objective, 
lawful or unlawful, by violent, cri·minal or 
other unlawful means, or (f) promotes, 
encourages or advocates the non-payment 
of moneys payable to the Central Fund 
or any other public fund or the nonpayment 
of local taxation shall ,be an unlawful 
organisation" (section 18) ; anysuch organisation may be declared to be 
such by the Government under section 19, 
but there is provision in section 20 for 
any interested person to make an application 
to the High Court for a declaration 
that a particular organisation is not illegalunder the terms of section 18 despite a 
governmental declaration to the contrary. 
Membership of an illegal organisation is 
then made a criminal offence in itself, 
though there is a defence of lack of knowledge 
of its unlawful nature. (It is questionable 
whether the definition of unlawful 
objects or activities for this purpose 
should extend to the prohibition of 
civil disobedience, a provided in the Idsh 
Act-ee below.) 

Imposing sanctions on the basi of menlbership 
in unlawful organisations poses 
serious problems in the absence of clear 
standards of" membership." For example,
the n1ere appearance of a name on membership 
roHs or lists of contributors 
should not be sufficient evidence to convict, 
or to transfer the burden of proof 
to the defendant. Frequently, organisations 
of the type we are concerned with, 

will gain financial and other forms of support 
through threats and intimidation. It 
is highly unlikely that a person who ha~ 
contributed to such an organisation as a 
result of threats, will be able to provethis upon being charged with being a 
member of the unlawful organisation. We 
suggest, therefore, that for the purposes 
of emergency powers legislation, "mem-bership 
" be defined in terms of knowingand voluntary participation in the activities 
of a banned organisation. " Participation 
" should be construed as requiring 
overt actions and although the appearance 
of a name on membership rolls o 
lists of contributors may ·be evidence o~ 
participation in the activities of the unlawful 
organisation, such evidence should 
not be sufficient to convict or transfer the 
burden of proof. The officers or office 
bearers of unlawful organisations would 
presumably be the main concern of an attempt 
to suppress the activities of an unlawful 
organisation. If being an officer oP 
office bearer in an unlawful organisation is 
to constitute a criminal offence, then it 
should be the case that the evidence of 
such status be limited to activity performed 
in that capacity for or on behalf 
of the organisation. In other words, a 
person cannot be guilty of being an officer 
in an unlawful organisation unless 
there is evidence to show that he has 
acted in that capacity. 

subversive literature and 
documents 

Similar considerations arise in respect of 
subversive literature and documents. It is 
important to preserve the right to campaign 
by peaceful and constitutional 
means for changes in the political and 
economic order without facilitating the 
promotion and organisation of subversion 
and violence. Though some codes of . 
emergency powers do contain generalprovisions permitting the banning of particular 
publications, as in regulation 8 of 
the Special Powers Act, most are restricted 
to the contents of particular issues 
or items, or to the prohibition of literature 
and documents produced by prohibited 
organisa6ons, as in regulation24A of the Special Powers Act. The most 
appropriate strategy would seem to be to 


efine seditious literature and documents 
s those which contain n1aterial advocal-
'ng violence or other subversive activi-
.ies, but not peaceful protest or civil dis-
bedience, or which seek to encourage 
·ecruitment for illegal organisations, and 
hen to make it an explicit criminal 
ffence for any person to be concerned 
n the preparation, printing, publication 
)r distribution of any such literature or 
jocuments. Mere possession of seditious 
iterature or documents on the other hand 
;hould not be an offence. The distinction 
' .o be drawn, as in the case of member-
;hip of illegal organisations, is between 
1ctive involvement and passive interest or 
;ympathy. Any attempt at prosecution in 
.he latter case may well do more harm 
.han good, in that the individual may not 
realise the illegality or rna y have had the 
locuments pressed on him by activists, 
Jr may have them for innocuous 
' . ·easons. 
' 'questioning prior to arrest 
· Nhere a campaign of violent terrorist 
1tttacks has been instituted some deroga-
.ion from the ordinary common law rule 
· hat no person shall be required to answer 
my questions as to his identity or move-
nents at any time may be necessary if 
he security authorities are to be able to 
ake preventive action. The existing regu-
tation under the Special Powers Act con-
:ers power on any member of the security:orces to stop and ask any person anytuestions which may reasonably be ad-
iressed to him, and the failure to answer 
o the best of his ability and knowledge:onstitutes an offence (regulation 7). In 
:tddition any person may be arrested 
;vithout warrant and detained for a periodJf up to 48 hours for the purpose of in-
errogation (regulation 10). The objectiono these provisions is not their existence, 
mt the lack of any ready means by•;vhich their use may be controlled and 
Lbuses corrected. 
[here are numerous precedents for im-
>osing an obligation in normal times on 
my person to esta;blish his identity when 
·equired to do so by an authorised per-
on, and for according a power of arrest 
21 
in cases where there i reasonable sus-
picion that a false name and address has 
been given. There is unlikely to be anyserious difficulty in formulating such a 
power to the satisfaction of all. It is more 
difficult to decide how far beyond this 
power it is reasonable to go for the pur-
poses of combating a terrorist campaign. 
There would appear to be two broad 
ground on which an extension might be 
based: first to enable security forces to 
require any person to give an account of 
his reason for being where he is stopped, 
and second to enable them to require a 
person to give an account of his move-
ments at any particular time. The first of 
these is essentially a preventive measure 
to permit the authorities to forestall 
terrorist activity, the second an aid to the 
clearing up of attacks which have alreadytaken place. For this reason it is sug-
gested that any statutory formulation 
should make a distinction between the 
obligation to give a simple account of 
physical movement in specified periods in 
the past, and the obligation to give an 
account of the reasons for being in a 
particular place at the time of question-
mg . 
detention for questioning 
Where an authorised person has reason 
to suspect that a person has not given a 
full and truthful account in answer to 
questions posed under these two heads, 
or where a person seeks to evade or ob-
struct the posing of such questions, fur-
ther power to arrest and detain for ques-
tioning may reasonably be sought by the 
authorities. The usual limit on such de-
tention is 48 hours. Where this further 
questioning suggests that an offence has 
been committed, or that the answers 
given previously by the person detained 
were not true, then the suspect may be 
charged of a substantive offence and 
brought before the courts, where the 
question of further detention or release 
on bail may be dealt with in the usual 
way. Power to take photographs and 
fingerprints of any person, as in section 
30 of the Offences Against the State Act 
1939 of the Irish Republic, might also, 
very w 11, be added in this conte t. 
efine seditious literature and documents 
s those which contain n1aterial advocal-
'ng violence or other subversive activi-
.ies, but not peaceful protest or civil dis-
bedience, or which seek to encourage 
·ecruitment for illegal organisations, and 
hen to make it an explicit criminal 
ffence for any person to be concerned 
n the preparation, printing, publication 
)r distribution of any such literature or 
jocuments. Mere possession of seditious 
iterature or documents on the other hand 
;hould not be an offence. The distinction 
' .o be drawn, as in the case of member-
;hip of illegal organisations, is between 
1ctive involvement and passive interest or 
;ympathy. Any attempt at prosecution in 
.he latter case may well do more harm 
.han good, in that the individual may not 
realise the illegality or rna y have had the 
locuments pressed on him by activists, 
Jr may have them for innocuous 
' . ·easons. 
' 'questioning prior to arrest 
· Nhere a campaign of violent terrorist 
1tttacks has been instituted some deroga-
.ion from the ordinary common law rule 
· hat no person shall be required to answer 
my questions as to his identity or move-
nents at any time may be necessary if 
he security authorities are to be able to 
ake preventive action. The existing regu-
tation under the Special Powers Act con-
:ers power on any member of the security:orces to stop and ask any person anytuestions which may reasonably be ad-
iressed to him, and the failure to answer 
o the best of his ability and knowledge:onstitutes an offence (regulation 7). In 
:tddition any person may be arrested 
;vithout warrant and detained for a periodJf up to 48 hours for the purpose of in-
errogation (regulation 10). The objectiono these provisions is not their existence, 
mt the lack of any ready means by•;vhich their use may be controlled and 
Lbuses corrected. 
[here are numerous precedents for im-
>osing an obligation in normal times on 
my person to esta;blish his identity when 
·equired to do so by an authorised per-
on, and for according a power of arrest 
21 
in cases where there i reasonable sus-
picion that a false name and address has 
been given. There is unlikely to be anyserious difficulty in formulating such a 
power to the satisfaction of all. It is more 
difficult to decide how far beyond this 
power it is reasonable to go for the pur-
poses of combating a terrorist campaign. 
There would appear to be two broad 
ground on which an extension might be 
based: first to enable security forces to 
require any person to give an account of 
his reason for being where he is stopped, 
and second to enable them to require a 
person to give an account of his move-
ments at any particular time. The first of 
these is essentially a preventive measure 
to permit the authorities to forestall 
terrorist activity, the second an aid to the 
clearing up of attacks which have alreadytaken place. For this reason it is sug-
gested that any statutory formulation 
should make a distinction between the 
obligation to give a simple account of 
physical movement in specified periods in 
the past, and the obligation to give an 
account of the reasons for being in a 
particular place at the time of question-
mg . 
detention for questioning 
Where an authorised person has reason 
to suspect that a person has not given a 
full and truthful account in answer to 
questions posed under these two heads, 
or where a person seeks to evade or ob-
struct the posing of such questions, fur-
ther power to arrest and detain for ques-
tioning may reasonably be sought by the 
authorities. The usual limit on such de-
tention is 48 hours. Where this further 
questioning suggests that an offence has 
been committed, or that the answers 
given previously by the person detained 
were not true, then the suspect may be 
charged of a substantive offence and 
brought before the courts, where the 
question of further detention or release 
on bail may be dealt with in the usual 
way. Power to take photographs and 
fingerprints of any person, as in section 
30 of the Offences Against the State Act 
1939 of the Irish Republic, might also, 
very w 11, be added in this conte t. 

22 
The most difficult issues in this context 
are those of the treatment of persons de-
tained for questioning, and the review 
of cases of alleged ill-treatment or the 
abuse of the power to detain. The gov-
ernment has accepted that certain forms 
of ill-treatment in the course of question-
ing are neither legal nor permissible, as 
recommended in the minority report of 
the Parker Committee (Report of the 
Committee of Privy Councillors appointed 
to consider authorised procedures for the 
interrogation of persons suspected of 
terrorism, Cmnd 4901, March 1972) but 
safeguards are still necessary. The most 
effective are likely to be the enactment of 
specific regulations governing the treat-
ment of those detained for questioning, 
and the creation of a review tribunal with 
power to award compensation to those 
whose complaints are found to be justi-
fied. The details of regulations to governthe questioning of persons detained need 
not be discussed here. But the principles 
upon which they should be formulated 
are clear: first that the conditions under 
which questioning may take place should 
be specified, including the permittedlength of periods of questioning, and pro-
vision for sleep and refreshment ; second 
that persons detained should be granted 
access to legal advice of their choice ; 
and thirdly that provision should be made 
for medical inspection of all persons both 
before and after and supervision during 
the period of questioning. 
In respect of the review of complaints of 
the abuse of the power to detain for 
questioning two broad principles might 
be adopted: first that the infringement of 
ordinary rights which the grant of such a 
power constitutes be recognised by pro-
vision for the compensation for loss of 
employment or earnings of all persons 
detained against whom charges are not 
subsequently preferred ; and second that 
the ordinary procedures for civil action 
for the abuse of powers be simplified by 
permitting a simple claim against the 
authorities to be registered before a 
specially appointed tribunal which should 
have power to order compensation not 
only for loss of earnings incurred as a 
result of the detention, but also for the 
loss of liberty or any ill-treatment 
suffered in breach of the regulations gov-
erning questioning, as for ~instance wher 
it could be shown that no reasonel!ble 
grounds for the detention of the personin question could be produced by the 
authorities. The constitution and pro-· 
cedures for such a tribunal are furthet' 
discussed below, but the principle on 
which they are based is that the increasG 
in the powers of the authorities should be 
offset by making it easier for claims oj · 
abuse to be established. 
arrest 
Given the existence of a power to arres1 
and detain for questioning and the crea· 
tion of a range of emergency criminal 
offences, there should be no need for a 
more general emergency power of arrest. 
An emergency powers statute would 
simply make all emergency offences · 
arrestable under the Criminal Law Act, 
1966, or the Criminal Law Act (NI), 1967 
so that any person reasonably suspected 
of having committed an offence could be 
arrested without warrant. Provision for 
an expedited complaints and compensa-
tion procedure in cases where the author-
ities could be shown to have acted un-
reasonably would also apply, as discussed! 
below. It should also be noted that 
ordinary legal procedures in respect of 
the granting or refusal of bail would 
apply to persons charged with offences 
under the emergency powers statute, so 
that the authorities should not be able to 
make use of unreasonable holdingcharges as an alternative to detention 
without trial. The position in this respect 
would be no different from that currentlyapplicable in Northern Ireland where 
there have been a number of cases in 
which magistrates or the High Court have 
granted applications for bail against the · 
wishes of the authorities (see for examplethe case of Close in December 1971 in 
which the magistrate's decision to grantbail was subsequently upheld by the High 
Court, and borne out by the fact that at 
the trial all charges not previously with-
drawn were withdrawn from considera-
tion by the jury on the ground of lack of 
any credible evidence). The existence of 
the Special Powers Act, however, has 
22 
The most difficult issues in this context 
are those of the treatment of persons de-
tained for questioning, and the review 
of cases of alleged ill-treatment or the 
abuse of the power to detain. The gov-
ernment has accepted that certain forms 
of ill-treatment in the course of question-
ing are neither legal nor permissible, as 
recommended in the minority report of 
the Parker Committee (Report of the 
Committee of Privy Councillors appointed 
to consider authorised procedures for the 
interrogation of persons suspected of 
terrorism, Cmnd 4901, March 1972) but 
safeguards are still necessary. The most 
effective are likely to be the enactment of 
specific regulations governing the treat-
ment of those detained for questioning, 
and the creation of a review tribunal with 
power to award compensation to those 
whose complaints are found to be justi-
fied. The details of regulations to governthe questioning of persons detained need 
not be discussed here. But the principles 
upon which they should be formulated 
are clear: first that the conditions under 
which questioning may take place should 
be specified, including the permittedlength of periods of questioning, and pro-
vision for sleep and refreshment ; second 
that persons detained should be granted 
access to legal advice of their choice ; 
and thirdly that provision should be made 
for medical inspection of all persons both 
before and after and supervision during 
the period of questioning. 
In respect of the review of complaints of 
the abuse of the power to detain for 
questioning two broad principles might 
be adopted: first that the infringement of 
ordinary rights which the grant of such a 
power constitutes be recognised by pro-
vision for the compensation for loss of 
employment or earnings of all persons 
detained against whom charges are not 
subsequently preferred ; and second that 
the ordinary procedures for civil action 
for the abuse of powers be simplified by 
permitting a simple claim against the 
authorities to be registered before a 
specially appointed tribunal which should 
have power to order compensation not 
only for loss of earnings incurred as a 
result of the detention, but also for the 
loss of liberty or any ill-treatment 
suffered in breach of the regulations gov-
erning questioning, as for ~instance wher 
it could be shown that no reasonel!ble 
grounds for the detention of the personin question could be produced by the 
authorities. The constitution and pro-· 
cedures for such a tribunal are furthet' 
discussed below, but the principle on 
which they are based is that the increasG 
in the powers of the authorities should be 
offset by making it easier for claims oj · 
abuse to be established. 
arrest 
Given the existence of a power to arres1 
and detain for questioning and the crea· 
tion of a range of emergency criminal 
offences, there should be no need for a 
more general emergency power of arrest. 
An emergency powers statute would 
simply make all emergency offences · 
arrestable under the Criminal Law Act, 
1966, or the Criminal Law Act (NI), 1967 
so that any person reasonably suspected 
of having committed an offence could be 
arrested without warrant. Provision for 
an expedited complaints and compensa-
tion procedure in cases where the author-
ities could be shown to have acted un-
reasonably would also apply, as discussed! 
below. It should also be noted that 
ordinary legal procedures in respect of 
the granting or refusal of bail would 
apply to persons charged with offences 
under the emergency powers statute, so 
that the authorities should not be able to 
make use of unreasonable holdingcharges as an alternative to detention 
without trial. The position in this respect 
would be no different from that currentlyapplicable in Northern Ireland where 
there have been a number of cases in 
which magistrates or the High Court have 
granted applications for bail against the · 
wishes of the authorities (see for examplethe case of Close in December 1971 in 
which the magistrate's decision to grantbail was subsequently upheld by the High 
Court, and borne out by the fact that at 
the trial all charges not previously with-
drawn were withdrawn from considera-
tion by the jury on the ground of lack of 
any credible evidence). The existence of 
the Special Powers Act, however, has 

>ermitted the authorities to detain and 
ntern some of those whose release has 
>een ordered by the courts. The retention 
f formal judicial control in this sphere 
s therefore an important part of the 
~eneral strategy of granting adequate 
>owers to the security authorities but 
,ubjecting their exercise to searching in-
{ependent control. There is no reason to 
~elieve that the courts will not be anxious 
o co-operate with the authorities in any 
~ase where there is any reason to suspecthat the release of a suspect might not be 
n the public interest. 
;earch and seizure 
· rhe power to search for and to seize fire-
mns and explosives is already granted to 
he authorities under permanent legisla-
ion. In addition there is a general com-
non law power to search for and seize 
~vidence of the commission of serious 
)ffences whether or not a warrant has 
,een obtained (Chic Fashions (WestVales) Ltd v Jones, 1968, 2 QB, 299). But 
n view of the unsettled state of the law 
· n this and other related respects, and of 
he advantages of legal clarity in emer-
~ency conditions, a new emergency1owers statute should include an explicit1ower to search for and to seize without 
. varrant any objects or documents de-
·gned or intended for use in contraven-
. ion of the emergency legislation, or which 
vould constitute admissible evidence of 
, he commission of an offence before the 
mergency criminal court. As in the case 
1f other extended powers granted in con-
tection with the emergency, the expedited 
.nd simplified procedures for dealing with 
omplaints of abuse and for awarding 
1 ompensation for any loss or injury un-
e easonably inflicted by the authorities 
e vould apply. 
e 
n 
1t • etention without trial 
~ ~he most far-reaching power likely to be 
1. .emanded by the authorities in an emer-
ency situation short of open hostilities 
V'ith a foreign power is the right to intern 
rithout trial any person suspected of 
eing a security risk. Powers under this 
23 
general head may extend from relativelyminor restriction orders or house arrest 
to full scale internment in camps pre-
pared for the purpose. Under the Special 
Powers Act use has sometimes been made 
of full scale internment, but simpler re-
striction orders were also used in the pre-
war period, often with the implicit ob-
jective of forcing the person concerned to 
go into voluntary exile. (Regulation 12 
authorises the Minister of Home Affairs 
to require any person " to remain in, or 
to proceed to and reside in, such place as 
may be specified in the order and to 
comply with such directions as to report-
ing to the police, restriction of movement 
and otherwise as may be specified ... 
or to be interned." For examples of the 
use of restriction orders see Report of a 
commission of inquiry, National Council 
of Civil Liberties, 1936, pp 19 and 37.)
All forms of the power, however, may be 
regarded as the most serious infringement 
of ordinary rights yet considered in that 
the ultimate decision on the liberty of 
those involved is typically made by the 
executive either on evidence which would 
not stand up in a court or else on the 
basis of what the suspect might do in the 
future rather than what he has already 
done. In addition the power of intern-
ment has acquired a highly emotive con-
notation in Northern Ireland from the 
history of its almost exclusive use against 
one section of the community and the 
lack of a clear distinction in its imple-
mentation between violent and political 
opposition to the existing regime. More-
over, once the initial decision was taken 
to introduce a policy of internment in 
August 1971, it was implemented on a 
very substantial scale and in a manner 
which has been subject to much criticism, 
even by those who were not opposed to 
internment in principle. The large num-
bers selected for internment, the condi-
tions at the holding centres and LongKesh, the speed and adequacy of the pro-
cedures for review and the lack of other 
safeguards have all given cause for con-
cern, even among those who believe that 
the decision of August 9th was justified. 
It is our view that internment is an ex-
treme measure which should be used, if 
at all, on an extremely limited scale,
subject to rigorous safeguards and in a 
>ermitted the authorities to detain and 
ntern some of those whose release has 
>een ordered by the courts. The retention 
f formal judicial control in this sphere 
s therefore an important part of the 
~eneral strategy of granting adequate 
>owers to the security authorities but 
,ubjecting their exercise to searching in-
{ependent control. There is no reason to 
~elieve that the courts will not be anxious 
o co-operate with the authorities in any 
~ase where there is any reason to suspecthat the release of a suspect might not be 
n the public interest. 
;earch and seizure 
· rhe power to search for and to seize fire-
mns and explosives is already granted to 
he authorities under permanent legisla-
ion. In addition there is a general com-
non law power to search for and seize 
~vidence of the commission of serious 
)ffences whether or not a warrant has 
,een obtained (Chic Fashions (WestVales) Ltd v Jones, 1968, 2 QB, 299). But 
n view of the unsettled state of the law 
· n this and other related respects, and of 
he advantages of legal clarity in emer-
~ency conditions, a new emergency1owers statute should include an explicit1ower to search for and to seize without 
. varrant any objects or documents de-
·gned or intended for use in contraven-
. ion of the emergency legislation, or which 
vould constitute admissible evidence of 
, he commission of an offence before the 
mergency criminal court. As in the case 
1f other extended powers granted in con-
tection with the emergency, the expedited 
.nd simplified procedures for dealing with 
omplaints of abuse and for awarding 
1 ompensation for any loss or injury un-
e easonably inflicted by the authorities 
e vould apply. 
e 
n 
1t • etention without trial 
~ ~he most far-reaching power likely to be 
1. .emanded by the authorities in an emer-
ency situation short of open hostilities 
V'ith a foreign power is the right to intern 
rithout trial any person suspected of 
eing a security risk. Powers under this 
23 
general head may extend from relativelyminor restriction orders or house arrest 
to full scale internment in camps pre-
pared for the purpose. Under the Special 
Powers Act use has sometimes been made 
of full scale internment, but simpler re-
striction orders were also used in the pre-
war period, often with the implicit ob-
jective of forcing the person concerned to 
go into voluntary exile. (Regulation 12 
authorises the Minister of Home Affairs 
to require any person " to remain in, or 
to proceed to and reside in, such place as 
may be specified in the order and to 
comply with such directions as to report-
ing to the police, restriction of movement 
and otherwise as may be specified ... 
or to be interned." For examples of the 
use of restriction orders see Report of a 
commission of inquiry, National Council 
of Civil Liberties, 1936, pp 19 and 37.)
All forms of the power, however, may be 
regarded as the most serious infringement 
of ordinary rights yet considered in that 
the ultimate decision on the liberty of 
those involved is typically made by the 
executive either on evidence which would 
not stand up in a court or else on the 
basis of what the suspect might do in the 
future rather than what he has already 
done. In addition the power of intern-
ment has acquired a highly emotive con-
notation in Northern Ireland from the 
history of its almost exclusive use against 
one section of the community and the 
lack of a clear distinction in its imple-
mentation between violent and political 
opposition to the existing regime. More-
over, once the initial decision was taken 
to introduce a policy of internment in 
August 1971, it was implemented on a 
very substantial scale and in a manner 
which has been subject to much criticism, 
even by those who were not opposed to 
internment in principle. The large num-
bers selected for internment, the condi-
tions at the holding centres and LongKesh, the speed and adequacy of the pro-
cedures for review and the lack of other 
safeguards have all given cause for con-
cern, even among those who believe that 
the decision of August 9th was justified. 
It is our view that internment is an ex-
treme measure which should be used, if 
at all, on an extremely limited scale,
subject to rigorous safeguards and in a 

manner that ensure that as far a is 
feasible internees are treated conspicuously 
better than ordinary prisoners. If 
this kind of means must be used, it is 
important that adequate resources should 
be provided to mitigate it and to ensure 
that it is implemented in as civilised a 
manner as possible. We do not wish to 
argue that a power of internment can 
never be justified in any circumstances, 
but we have nonetheless adopted the position 
that it should be avoided wherever 
possible and that it should not be further 
used in Northern Ireland. 

The power of internment may be sought 
by the authorities for two broad reasons: 
first because of the difficulty of securingconvictions against those known or suspected 
of being involved in subversive 
activities ; and secondly in order to prevent 
future subversion by those thought 
likely to resort to it. These two heads of 
justification cannot always be clearly distinguished 
in individual cases, but it is 
useful to consider what may be termed 
preventive and punitive internment separately 
both in relation to the current 
situation in Northern Ireland and in the 
preparation of a new general framework 
for emergency powers. 

The need to resort to punitive internment 
is frequently justified by the impossibility 
of securing convictions in the courts either 
because of the difficulty in obtainingevidence against suspects or else because 
of the fear which the potential witnesses 
may have of reprisals against themselves 
or their families if they give evidence in 
court. This is a very real danger in 
Northern Ireland in that the murder of 
potential witnesses and informers is established 
practice among subversive groups. 
(The most blatant recent case was the 
assassination on 18 January 1972 of Mr. 
Sidney Agnew the day before he was due 
to give evidence of the hijacking of a 
bus.) We have sought to meet these difficulties 
by combination of provision for 
the hearing of cases in camera and other 
procedural and evidential rules within the 
framework of specially constituted emergency 
courts, as discussed below, and the 
creation of a range of emergency offences 
specificall de igned to deal with tho e 

who have overtly shown their upport for 
or involvement in subversive activities. 
On balance therefore we have recommended 
that those suspected of actual 
involvement in violent subversion should 
be dealt with by formal charges rather 
than by internment without trial. We feel 
that this approach is likely to prove more 
effective in meeting the requirements of 
security, especially in Northern Ireland, 
since it denies to subversive groups the 
ready recruiting platform that internment 
without trial affords. 

We have adopted a similar position in 
respect of purely preventive internment. 
This has regularly been employed under 
the Special Powers Act against those 
thought to be likely to resort to subversive 
activities on the evidence of their 
past associations or actions without seeking 
to prove that they have actually done 
anything to deserve detention in the 
immediate emergency. The use of the 
Special Powers Act for this purpose has 
been one of the principal and most cogent ' 
objections to the current security operation, 
in that a number of persons have 
been interned who are generally believed 
by their families and associates and therefore 
by their local communities not to 
have been involved in any form of violent 
subversion, and who thus appear to have 
been imprisoned for their political views 
rather than for their actions. Given the 
essentially political nature of the conflict 
in Northern Ireland this has probablyhad a wholly counterproductive effect. 
Having made tllis assessment of the current 
situation, we have been ·faced with 
the difficult question whether or not to 
make provision for powers of detention 
without trial in a new general emergency 
powers statute of the kind which we have 
suggested. Two views might reasonably . 
be adopted in this context: first that provision 
should be made for detention 
without trial so that if it is ever necessary 
to resort to it an adequate range of 
controls and safeguards will have been 
built in to the enabling statute in advance 
; and secondly that a power of 
internment should not be included on the 
ground that it is undesirable to make 
advance provision for and thu to facilitate 
the implementation of a pow r which 


hould only be adopted in the la t re ·ort. 
Ne have resolved this dilemma in favour 
>f the second alternative on the pragnatic 
ground that the twin effect of the 
!motive significance of internment in 
~orthern Ireland and the traditional di ike 
of any such power in Britain as a 
vhole would be likely to cau e eriou 
iifficulties in securing parliamentarytpproval for the kind of emergency 
wwers legi lation which we envi age. 

t i nonethele important to include 
orne discussion of the range and type of 
afeguards which should in our view be 
Ldopted if a power of detention without 
rial were to be included or sub equently 
tdopted. The principles upon which the e 
afeguards hould be based are firstly that 
pecific prior authori ation be granted for 
he implementation of powers to intern 
vithout trial eparate] y and di tinct from 
he implementation of other emergency 
>owers ; secondly that the evidence uponvhich a person is detained, whether it 
elates to past activities or to the likelitood 
of future involvement in ubversion, 
hould be reviewed by a judicial body 
ndependent of those whose re pon ibility 
t i to implement the power ; thirdly that 
vherever possible an opportunity be 
;iven to the uspect to refute that evilence 
and to be allowed representation 
or that purpose ; fourthly that a pro:
edure for compensating those interned 

nd their dependents be e tablished ; 
ifthly that detailed regulations for the 
reatment of internee and for their rights 
n respect of visits be pub1ished ; and 
inally that provision be made for full 
lisclosure both to their families and to 
he public at large of the names of all 
hose interned as soon as is reasonably,racticable. Each of these points may be 
lealt with briefly in turn: 

. Prior sanction: the nature of this 
1rior control would depend on the form 
,f control adopted for the declaration of 
. n emergency but whatever form i 
.dopted the special position of detention 
vithout trial should be recognised by,rovision for a separate and distinct proedure 
for authorising its implementation, 
V'hether by a special affirmative resoluion, 
a special majority or otherwise. 

2. Judicial review: the justification for 
the detention of each internee should be 
automatically and periodically reviewed 
within a specified period by a judicialtribunal with full jurisdiction to hear the 
evidence upon which the authorities seek 
to ju tify the detention, to subpoenawitne es, and come to their own deci ion 
on the merits. There is provision (regulation 
12 (3)) under the Special Powers Act 
for the review of each ca e by an ad-
vi ory committee, but the Civil Authorityi under no obligation to accept a recommendation 
for release. The provi ions of 
the Iri h Offences Against the State Act 
1940, are a better precedent in this re pectin that the Commission which must be et 
up as soon as internment i implementedhas power to order the relea e of anyinternee if it appears that there is no 
reasonable ground for his continued 
detention ; this provi ion wa introduced 
in 1940 after judicial proceedings had 
tabli hed that the provi ion of the 
1939 Act were uncon titutional ( 8). 

3. Right of representation: each internee 
should have a right to appear and to be 
represented before the tribunal. To enable 
him to refute any false or inaccurate allegation 
made to the tribunal by the 
authoritie he hould be given a full statement 
of the grounds upon which he is 
interned and the evidence against him, 
ubject only to the right of the authorities 
to petition the tribunal that the source of 
the evidence need not be revealed. An 
undertaking that the grounds for internment 
shall be revealed and that each 
internee shall have the right to be represented 
has been given by the Mini try 
of Home Affairs in Northern Ireland,
though there have been complaints about 
the stereotyped nature of the reasons 
given. It is suggested that this undertaking 
should be made a statutory obligation, 
and that the objection as to the stereotyped 
nature of the reasons given be met 
by the obligation to reveal the evidence 
against each internee . 

4. Compensation : given that detention 
without trial is adopted as a preventiverather than a punitive measure, those detained 
should be compensated by the 
community for whose alleged benefit they 

have been deprived of their liberty. The 
simplest and most acceptable measure of 
compensation for this purpose is perhaps 
a payment to the dependents of the person 
detained sufficient to maintain them 
as they would have been maintained if the 
breadwinner had not been removed. Consideration 
should also be given to the 
payment of compensation to any trade or 
business which suffers unavoidable loss 
through the detention of any of its principals. 


5. Disclosure: full and regular disclosure 
should also be made of the identity of 
those detained and the relatives or dependents 
of any person detained should 
be informed within a specified time. 
6. Conditions of detention: specific regulations 
should be adopted and publishedgoverning the conditions of detention 
along the lines of prison rules but providing 
for better conditions, as for instance 
under the Offences Against the 
State Act 1940. 
special courts 

If a power of detention without trial is 
generally to be denied to the authorities 
in emergency conditions, it is important 
to ensure that those suspected of subversive 
activities can be brought quickly 
to trial, and that those who are guilty will 
not escape conviction on procedural or 
technical grounds. In addition action maybe necessary to counteract the possibility 
of the intimidation of witnesses or juries.
The approach to this problem which 
appears most likely to prove satisfactory is 
to remove the trial of emergency offences 
from the ordinary courts when they cannot 
adequately deal with the situation, and 
to establish a temporary emergency 
court or courts whose procedure and 
rules of evidence are more appropriate to 
the conditions prevailing in the community. 
This may involve some derogation 
from the accepted common law rights 
of accused persons, but if the much more 
drastic derogation involved in the adoption 
of detention without trial is to be 
avoided some action to shift emphasis in 
rules of evidence and procedure away 

from the protection of the innocent to 
wards the conviction of the guilty rna~ 
be acceptable. The precise form 01 
these alterations in procedure shoul< 
probably be left to the discretion 0 
judicial authorities subject to parliamentary approval by affirmative resolu. 
tion of the rules which they propose tc 
adopt. Some of the possibilities howeve1 
may usefully be discussed briefly in thi: 
context: 

Constitution of emergency courts: thi~ 

is clearly dependent on the wider issue 01 
the control of security and law and order 
but in so far as Northern Ireland i: 
concerned there would be clear advan 
tages in ensuring the impartiality of an)
emergency court by the appointment o· 
an external presiding judge, whether frorr 
Britain, Europe or the Commonwealth! 
and in providing that all cases shall bt• 
heard by a bench of at least two judge~ 
or magistrates. 

Suspension of jury trial: where there i~ 
clear risk of intimidation or partial decisions 
by an ordinary jury, a risk which is 
of special relevance in a situation ojcommunal conflict, the suspension of jur)
trial may well be necessary even for the 
most serious cases ; as suggested abov~ 
the objection to trial by any single judg 
or magistrate in serious cases may be me1 
by provision for trial by a bench ojjudges or magistrates, or by a judgassisted by assessors. 

Hearing in camera: to avoid .unnecessary 
pressure on or danger to witnesses or t 
prevent the revelation of important 
sources of information the emergency 
court should be explicitly permitted t 
hear any case or part of any case in 
camera. 

Rules of evidence: some alteration in the 
ordinary rules of evidence in criminal 
cases might be necessary to ensure tha1 
relevant evidence against a suspect was 
not excluded on grounds of technical inadmissability, 
as for instance by the suspension 
of the hearsay rule ; if this were 
done, the final decision on the strength 
and credibility of the evidence would of 
course rest with the court; any deroga



.ion from the rules of evidence for thi 
:mrpose should be regarded as an extreme 
neasure. 

Burden of proof: it might prove neces;
ary in extreme circumstances to alter the 
:raditional standard of proof in criminal 
;ases, that the case be proved against the 
· tccused beyond reasonable doubt, to the 
;omewhat less demanding standard of the 
Jalance of probability normally restricted 

o civil litigation. 
:>owers of disposal: where the nature of 
he charge against a uspect i of a prerentive 
nature, as in the ca e of a charge 
>f active involvement in an illegal organ, 
ation, a court which found the charge 
>roved might be permitted to order in1 
lefinite detention of the accu ed until the 
, ermination of the emergency rather than 

o impose a definite entence. It i also 
rguable that the maximum sentence for 
ny emergency offence should be the dur·
Ltion of the emergency and that the 
s .uthorities should be required to elect to 
,roceed either in the emergency courts 
ubject to this limitation or in the ordin-
Lry courts. 

y 

e ·eview tribunal 

:t ~he basis of our proposal for the estab1f 
ishment of a special tribunal to deal with 
:e omplaints over the misuse or abuse of 
mergency powers, as already explained, 
~ that the additional powers granted to 
1 he security authorities should be offset 
:o 'Y making it simpler for an aggrieved 
1t 1erson to seek and gain redress for any 
;y 1jury or injustice suffered by him 
to hrough the exercise of emergencyin owers. Though the common law action 

or unlawful assault or battery is avail-
hie in all cases of unreasonable ill-treatlent 
(see Moore v Minister of Home 
tfjairs, Armagh County Court, February972), some acceleration in the somewhat 
ilatory processes of the ordinary civil 
ourts is probably necessary to preventllegations of maltreatment from them-
elves contributing to an escalation of the 
mergency. 

addition the tort of malicious prosecu


tion imposes a very heavy burden of 
proof, that of establishing some lack of 
bona fides on the part of the defendants ; 
in the context of increased emergency 
powers of arrest and detention for questioning, 
this burden might reasonably be 
eased to require only evidence that the 
authorities acted unreasonably in all the 
circumstances. Similarly the ordinaryrules as to compensation might be supplemented 
by a implified scheme for the 
compen ation for loss of employment or 
earnings of all person detained against 
whom charges are not subsequently preferred, 
whether or not the action of the 
authorities could be shown to have been 
unrea onable in all the circumstances. As 
in the case of the pecial criminal courts 
di cus ed in the previous section, the 
formulation of rules of procedure and 
evidence should be left to the judicialauthorities concerned, subject to parliamentary 
ratification. The constitution of 
such a review tribunal is similarly not a 
matter that can readily be prescribed in 
advance. 

public order and civil 
disobedience 

The main emphasis in this analysis of 
emergency powers has been on powersdirected against violent subversion. But 
as was pointed out at the start of this 
chapter violent subversion cannot always 
be separated from the more general issues 
of public order and organised protest. 
Originally peaceful processions or meetings 
and other forms of non-violent protest 
or civil disobedience have on occasions 
been developed into violent confrontations. 
Such activities may in addition 
be closely connected with a campaign 
of violent subversion whether or 
not there is any direct relationship between 
the leaders of either movement. 
This is clearly a problem of special importance 
in Northern Ireland where there 
is a well established practice on all sides 
not just of organising mass processionsand demonstrations, but also of seekingto assert some form of territorial supremacy 
by parading in areas where opposition 
may be expected. It is not surprising 
therefore that regulations have been 
adopted under the Special Powers Act 


authorising the control and prohibition of 
processions and meetings and other related 
matters. Specific legislation was also 
introduced by the Northern Ireland Parliament 
to deal with squatting in public 
buildings and other forms of civil disobedience 
(Public Order (Amendment)
Act (NI), 1970). This legislation like the 
Special Powers Act is highly contentious, 
and the question arises as to whether any 
powers not already available under the 
ordinary law of public order should be 
included in an emergency powers statute 
to deal with this aspect of an emergencysituation. 

ln so far as public order is concerned 
wherever possible the matter should be 
dealt with ~by permanent legis]ation. The 
existing strategy of the Public Order Acts 
of permitting the authorities to imposeconditions as to routes and times for processions 
and as to time and place for 
meetings with a view to preventing disorder 
is broadly right. But in Northern 
Ireland it is clearly of the utmost importance 
that these decisions be made by 
a body which is accepted generally as impartial 
and independent. The statutoryclarification of the somewhat vague c'Ommon 
law rules on obstruction should be 
welcomed in that any confusion on the 
part of either the protesters or the authorities 
as to their respective rights increases 
rather than decrease the ri k of unneces


ary confrontations. 

Nonethele s some increase in powers in 
this sphere may be necessary under emergency 
conditions. In particular a power to 
ban all processions in a particular area 
may be required, and when riot or civil 
disorder has already commenced it maybe necessary to impose limited or extended 
forms of curfew or other restrictions 
on movement. As already stated it 
is our view that the existing common law 
powers in this respect are insufficientlyclear, and that the need to rely on common 
law authority may impose an unnecessary 
burden of uncertainty on the 
authorities. We would thus recommend 
the inclusion in any emergency powerslegislation of a general power to order restrictions 
on movement in specified areas. 
'I his would cover not only proces ions 

and meetings, but also, in relation to th 
threat of bombs and other attacks on property, 
the parking of vehicles and the approach 
to buildings of special vulnerability. 
As in the case of other emergency 
powers, however, provision should b 
made for·an appeal to the emergency tribunal 
against any such order of restriction, 
and the tribunal should be granted

fuJI jurisdiction to rescind any order 
issued by the authorities. 

In respect of civil disobedience, on the 
other hand, we have adopted the view 
that no derogation from the ordinary law 
of the land should be sought in emergency 
powers legislation. The basis of a campaign 
of civil di obedience, as we understand 
it, is that individuals or large numbers 
of persons are induced deliberately 
to break the law, whether by committingcriminal offences or repudiating civil obligations, 
with a view to drawing attention 
to the alleged inequity of the law or in 
the case of mass action to rendering their 
enforcement impractical. Though in an 
extreme case such a campaign may be 
adopted with wide political objectives in 
view, it is generally linked to a broad 
acceptance of the authority of the court 
and of any sanctions or penalties which 
may be imposed. Success is dependent on 
securing mass support either for any resulting 
political protest, or more directly 
on clogging the courts at an administrative 
level and so making the continued 
enforcement of the law impossible. In so 
far as these techniques are dependent on 
mass support and do not involve any deliberate 
rejection of the authority of the 
existing order by violent means, we feel 
that they should not be prohibited in any 
emergency powers legislation. Indeed the 
idea of prohibiting civil disobedience is 
something of a contradiction in terms.· 
Legislative or administrative countermeasures 
may have to be taken in certain 
cases to prevent the disruption of essential 
services, but the merits of such 
measures can only be judged in the circumstances 
of the case. It would not be 
practical or desirable to attempt to provide 
in advance for matters of this kind 
in an emergency powers act designed to 

deal with violent subversion. 


• conclusion 
h c propo al could form the ba i for 
~mergency powers legislation for all or 
my of the jurisdictions in the British 
Jes. The question of the control over 
;ecur.ity in Northern Ireland is at present 
L matter of heated political controversy>f a kind we have tried to avoid. How-
~ver there are several general reasons for 
·avouring the enactment of a new Emer-
~ency Powers Act to apply to the United 
( ingdom as a whole. First, in times of 
var or public emergency threatening the 
ife of the nation, the whole nation is 
tffected, even if the trouble is largelyocalised. In such circumstances it is de-
irable that the enacting and supervisingtuthority should be in the central 
overeign legislature, that is to say Parlia-
nent at Westminster. Secondly, it is de-
.irable that authority for dealing with an 
:mergency should not be fragmented and 
hat confusions of the kind that have 
trisen in respect of the legality of some 
)f the Army's operations in Northern Ire-
and should be avoided. Thirdly, it i de-
irable that standards and values in such 
L delicate area hould be uniform 
r hroughout the United Kingdom. The 
nvocation of the powers in a particular 
~mergency may be localised, but the prin-
·iples which govern such powers should 
>e uniform. F ourthly, the United King-
lorn is bound by international law to ob-
erve certain international standards. Fin-
Lily, there is a need for a fundamental re-
riew of the law relating to emergency 
>owers in the United Kingdom, in the 
ight not only of the experience of North-
·rn Ireland but also of experience in other 
...-ommonwealth countries since World 
.Var II. Recently no less an authority than 
_, ord MacDermott, former Lord Chief 
ustice of Northern Ireland, aid: " But 
s aw and order have recently been as ailed 
n many ways the world over, and our 
nalady may be yours tomorrow. What I 
o vould suggest is that, instead of meetinghe problems I have mentioned piece-
neal, it would be better and more e:ffec-
ual to enact an emergency code for the 
Jnited Kingdom which would be applic-
.ble, a events warranted, to the whole or 
.ny part thereof and be operative only in 
ime of cri is. The enactment of such a 
ode would facilitate advance prepara-
ion and the implementation of our inter-
national obi igation. : and by iL veryexistence it might go far Lo discourageiSUbvers-ion." That proposal should he 
given wholehearted support. 
SUMMARY 
The conclusions to thi survey of emer-
gency powers may be summarised: 
1. There are serious defects in the form 
of the Special Powers Act as currentlyapplied in Northern Ireland, and in par-
ticular in the absence of satisfactory con-
trols and safeguards against the misuse 
and abuse of the powers granted to the 
security authorities. But the simple repeal 
of the Act would be equally un atisfactoryin that it would leave the security authori-
ties to operate under vague and general 
common law power which do not pro-
vide any greater measure of immediate 
protection or redress for the individual. 
2. In place of the Special Powers Act a 
new Emergency Powers (Security) Act for 
the whole of the United Kingdom should 
therefore be adopted under which an 
emergency in any part of the United 
Kingdom might be dealt with. This new 
statute should contain provision for all 
the powers which the authorities mayreasonably require to deal with an out-
break of violent subversion, but any de-
rogation from the ordinary rights of the 
individual should be balanced by the pro-
vi ion of additional safeguards against 
abuse and of procedures for dealing with 
complaints and for the compensation of 
those who suffer loss or injury as a result. 
3. The implementation of the emer-
gency powers provided for in the new 
tatute should be dependent on the de-
claration of a state of emergency in the 
area affected ; this declaration should be 
ratified within a specified time by the 
Westminster Parliament ; but if provi ion 
is made for the exerci e of security powers 
by a regional legislature in Northern Ire-
land any declaration of emergency should 
also be reviewable by an independentjudicial body. 
4. The emergency power provided for 
• conclusion 
h c propo al could form the ba i for 
~mergency powers legislation for all or 
my of the jurisdictions in the British 
Jes. The question of the control over 
;ecur.ity in Northern Ireland is at present 
L matter of heated political controversy>f a kind we have tried to avoid. How-
~ver there are several general reasons for 
·avouring the enactment of a new Emer-
~ency Powers Act to apply to the United 
( ingdom as a whole. First, in times of 
var or public emergency threatening the 
ife of the nation, the whole nation is 
tffected, even if the trouble is largelyocalised. In such circumstances it is de-
irable that the enacting and supervisingtuthority should be in the central 
overeign legislature, that is to say Parlia-
nent at Westminster. Secondly, it is de-
.irable that authority for dealing with an 
:mergency should not be fragmented and 
hat confusions of the kind that have 
trisen in respect of the legality of some 
)f the Army's operations in Northern Ire-
and should be avoided. Thirdly, it i de-
irable that standards and values in such 
L delicate area hould be uniform 
r hroughout the United Kingdom. The 
nvocation of the powers in a particular 
~mergency may be localised, but the prin-
·iples which govern such powers should 
>e uniform. F ourthly, the United King-
lorn is bound by international law to ob-
erve certain international standards. Fin-
Lily, there is a need for a fundamental re-
riew of the law relating to emergency 
>owers in the United Kingdom, in the 
ight not only of the experience of North-
·rn Ireland but also of experience in other 
...-ommonwealth countries since World 
.Var II. Recently no less an authority than 
_, ord MacDermott, former Lord Chief 
ustice of Northern Ireland, aid: " But 
s aw and order have recently been as ailed 
n many ways the world over, and our 
nalady may be yours tomorrow. What I 
o vould suggest is that, instead of meetinghe problems I have mentioned piece-
neal, it would be better and more e:ffec-
ual to enact an emergency code for the 
Jnited Kingdom which would be applic-
.ble, a events warranted, to the whole or 
.ny part thereof and be operative only in 
ime of cri is. The enactment of such a 
ode would facilitate advance prepara-
ion and the implementation of our inter-
national obi igation. : and by iL veryexistence it might go far Lo discourageiSUbvers-ion." That proposal should he 
given wholehearted support. 
SUMMARY 
The conclusions to thi survey of emer-
gency powers may be summarised: 
1. There are serious defects in the form 
of the Special Powers Act as currentlyapplied in Northern Ireland, and in par-
ticular in the absence of satisfactory con-
trols and safeguards against the misuse 
and abuse of the powers granted to the 
security authorities. But the simple repeal 
of the Act would be equally un atisfactoryin that it would leave the security authori-
ties to operate under vague and general 
common law power which do not pro-
vide any greater measure of immediate 
protection or redress for the individual. 
2. In place of the Special Powers Act a 
new Emergency Powers (Security) Act for 
the whole of the United Kingdom should 
therefore be adopted under which an 
emergency in any part of the United 
Kingdom might be dealt with. This new 
statute should contain provision for all 
the powers which the authorities mayreasonably require to deal with an out-
break of violent subversion, but any de-
rogation from the ordinary rights of the 
individual should be balanced by the pro-
vi ion of additional safeguards against 
abuse and of procedures for dealing with 
complaints and for the compensation of 
those who suffer loss or injury as a result. 
3. The implementation of the emer-
gency powers provided for in the new 
tatute should be dependent on the de-
claration of a state of emergency in the 
area affected ; this declaration should be 
ratified within a specified time by the 
Westminster Parliament ; but if provi ion 
is made for the exerci e of security powers 
by a regional legislature in Northern Ire-
land any declaration of emergency should 
also be reviewable by an independentjudicial body. 
4. The emergency power provided for 

30 
in the statute should cover the power to 
stop and search any person, to requirehim to give an account of his movements, 
to detain any person for questioning on 
reasonable suspicion for a maximum 
period of 48 hours, and to search for and 
to seize any articles or evidence of un-
lawful activity. 
5. The statute should make provision for 
emergency criminal offences covering anyform of active involvement in violent sub-
versive activity or active participation in 
any organisati,on whose objects or pur-
poses include any form of violent sub-
version. The statute should make provi-
sion for any such organisation to be de-
clared illegal, subject to a right of appealto the courts for the review of any such 
declaration. 
6. The statute should provide for the 
estel!blishment of special criminal courts 
with jurisdiction to try any emergency 
offences provided for in the statute. The 
rules of procedure for such emergency 
courts should be provided for by regula-
tion subject to parliamentary ratificat1on. 
7. The statute should provide for the 
establishment of a tribunal to hear com-
plaints against the authorities for the mis-
use or abuse of any powers granted to 
them. The tribunal should have jurisdic-
tion to award compensation to any person 
who suffers loss or injury as a result of 
any unreasonable action on the part of 
the authorities and in particular for anyloss of income occasioned by the deten-
tion of any person. The rules of pro-
cedure before the tribunal should be de-
signed to facilitate the speedy settlement 
of claims and to permit recovery and re-
dress in a wider range of cases than is 
normally permissable under common law. 
8. In view of its emotive significance 
both in orthern Ireland and in Britain 
as a whole the statute should not make 
advance provi ion for a power of intern-
ment without trial, but if any such power 
is subsequently adopted it should be 
accompanied with stringent prior and 
posterior safeguards. 
9. The control of processions and other 
forms of non-violent protest shoulo 
generally be left to be dealt with unde1 
permanent legislation, but provisionshould be included in an emergenc) 
powers statute for the making of orden 
restricting processions or meetings · 
specified times and places, and for re· 
stricting access to or movement in speci· 
fied places, subject to the right of an)
person affected to appeal to the court~ 
against any such -order. 
heads of legislation 
The following is a very tentative outlim 
for an Emergency Powers (Security) Ac' 
based on the above proposals. 
Clause one: Declaration of a state o. 
emergency: where it appears to the Sec 
retary of State that as a result of violen 
subversion on the part of any person o. 
persons a state of emergency exists in an~. 
part of the United Kingdom he may issw 
a proclamation to that effect, upon whicl 
any specified powers provided in this Ac 
shall come into effect in the area specifiecin the proclamation. 
Clause two: Ratification: unless th(
declaration of a state of emergency i 
ratified by affirmative resolution in botl 
Houses of Parliament within two week 
of the proclamation it shall cease to havt 
effect and shall not in any event havt 
effect for longer than a period of siJ 
months unless further ratified. 
Clause three: Emergency offences: i 
shall be an offence for any person (i) t< 
engage in any violent subversive activity 
(ii) to take an active part in the affairs o 
any organisation whose purposes includ1 
violent subversive activity of any kind o · 
which has been declared to be illegaunder the terms of this Act ; (iii) to tak 4 part in the preparation, printing, publica 
tion or distribution of any publication o 
broadcast which contains any materia 
inciting violent subversive activity or promoting any organisation which has bee1 
declared to be illegal under the terms o 
this Act. 
Clause four: Violent subversive activit. 
30 
in the statute should cover the power to 
stop and search any person, to requirehim to give an account of his movements, 
to detain any person for questioning on 
reasonable suspicion for a maximum 
period of 48 hours, and to search for and 
to seize any articles or evidence of un-
lawful activity. 
5. The statute should make provision for 
emergency criminal offences covering anyform of active involvement in violent sub-
versive activity or active participation in 
any organisati,on whose objects or pur-
poses include any form of violent sub-
version. The statute should make provi-
sion for any such organisation to be de-
clared illegal, subject to a right of appealto the courts for the review of any such 
declaration. 
6. The statute should provide for the 
estel!blishment of special criminal courts 
with jurisdiction to try any emergency 
offences provided for in the statute. The 
rules of procedure for such emergency 
courts should be provided for by regula-
tion subject to parliamentary ratificat1on. 
7. The statute should provide for the 
establishment of a tribunal to hear com-
plaints against the authorities for the mis-
use or abuse of any powers granted to 
them. The tribunal should have jurisdic-
tion to award compensation to any person 
who suffers loss or injury as a result of 
any unreasonable action on the part of 
the authorities and in particular for anyloss of income occasioned by the deten-
tion of any person. The rules of pro-
cedure before the tribunal should be de-
signed to facilitate the speedy settlement 
of claims and to permit recovery and re-
dress in a wider range of cases than is 
normally permissable under common law. 
8. In view of its emotive significance 
both in orthern Ireland and in Britain 
as a whole the statute should not make 
advance provi ion for a power of intern-
ment without trial, but if any such power 
is subsequently adopted it should be 
accompanied with stringent prior and 
posterior safeguards. 
9. The control of processions and other 
forms of non-violent protest shoulo 
generally be left to be dealt with unde1 
permanent legislation, but provisionshould be included in an emergenc) 
powers statute for the making of orden 
restricting processions or meetings · 
specified times and places, and for re· 
stricting access to or movement in speci· 
fied places, subject to the right of an)
person affected to appeal to the court~ 
against any such -order. 
heads of legislation 
The following is a very tentative outlim 
for an Emergency Powers (Security) Ac' 
based on the above proposals. 
Clause one: Declaration of a state o. 
emergency: where it appears to the Sec 
retary of State that as a result of violen 
subversion on the part of any person o. 
persons a state of emergency exists in an~. 
part of the United Kingdom he may issw 
a proclamation to that effect, upon whicl 
any specified powers provided in this Ac 
shall come into effect in the area specifiecin the proclamation. 
Clause two: Ratification: unless th(
declaration of a state of emergency i 
ratified by affirmative resolution in botl 
Houses of Parliament within two week 
of the proclamation it shall cease to havt 
effect and shall not in any event havt 
effect for longer than a period of siJ 
months unless further ratified. 
Clause three: Emergency offences: i 
shall be an offence for any person (i) t< 
engage in any violent subversive activity 
(ii) to take an active part in the affairs o 
any organisation whose purposes includ1 
violent subversive activity of any kind o · 
which has been declared to be illegaunder the terms of this Act ; (iii) to tak 4 part in the preparation, printing, publica 
tion or distribution of any publication o 
broadcast which contains any materia 
inciting violent subversive activity or promoting any organisation which has bee1 
declared to be illegal under the terms o 
this Act. 
Clause four: Violent subversive activit. 

or the purposes of this Act shall be 
eemed to cover any of the followingLctivities undertaken with a view to 
ecuring whether directly or indirectly 
my political objective: (i) the use of 
're-arms or explosives against any person 
r property; (ii) the infliction of mali-
~ious injury or damage on any person or 
Jroperty ; (iii) the kidnapping of anyerson ; (iv) the hijacking of any vehicle 
Jr vessel; (v) the forcible occupation of 
my premises; (vi) any other unlawful 
riolent activity. 
:;1ause five: Illegal organisations: anyJrganisation which promotes or incites 
riolent subversion in any form may be 
declared to be an illegal organisation for 
he purposes of this Act, provided that 
my person may make an application to 
he Court to determine whether the 
leclaration of illegality is justified in all 
he circumstances. 
: lause six: Power to stop and search: 
my person authorised under this Act mayLt any time stop and search any person, 
· md may require him to reveal his name 
. md address and to give an account of his 
, novements at any time during the period)f the emergency. 
::lause seven: Power to detain for ques-
ioning: where an authorised person has 
· ·easonable cause to suspect that any per-
orr has not given a full and truthful 
mswer to any question put to him under 
:lause six he may detain him for further 
tuestioning for a period of up to 48 
· L?urs, and may for that purpose remove 
, um to any place authorised for that 
mrpose ; the treatment of persons de-
ained for questioning to be prescribed by 
egulations under this Act. 
r. "'IL :--ause eight: Power to arrest: all of-
e ences under this Act shall be deemed 
~ o be arrestable offences for the purposes 
r• >f the Criminal Law Act 1967. 
u"'I . _, ause rune : Power of search and seiz-
(re: any person authorised under this 
\?t may without warrant search for and 
e1ze any article which he has reasonable 
:rounds to believe is designed or intended 
or use in contravention of this Act, or 
31 
which he has reasonable ground to believe 
constitutes admissable evidence of the 
commission of an offence under this Act. 
Clause ten: Emergency Criminal Courts: 
provision for the constitution and juris-
diction of emergency courts to be pro-
vided for by regulation subject to ratifi-
cation by Parliament. 
Clause eleven: Review Tribunal: pro-
vision for the constitution and jurisdictionof a review tribunal to be provided for byregulation subject to ratification. 
Clause twelve: Miscellaneous powers:
The Secretary of State may at any time 
make an order restricting or prohibitingpublic processions or public meetings in 
any place, or restricting access to or 
movement in any place for a specifiedperiod, subject to the right of any person 
to make an application to the Court to 
determine whether the order was justified 
in all the circumstances. 
or the purposes of this Act shall be 
eemed to cover any of the followingLctivities undertaken with a view to 
ecuring whether directly or indirectly 
my political objective: (i) the use of 
're-arms or explosives against any person 
r property; (ii) the infliction of mali-
~ious injury or damage on any person or 
Jroperty ; (iii) the kidnapping of anyerson ; (iv) the hijacking of any vehicle 
Jr vessel; (v) the forcible occupation of 
my premises; (vi) any other unlawful 
riolent activity. 
:;1ause five: Illegal organisations: anyJrganisation which promotes or incites 
riolent subversion in any form may be 
declared to be an illegal organisation for 
he purposes of this Act, provided that 
my person may make an application to 
he Court to determine whether the 
leclaration of illegality is justified in all 
he circumstances. 
: lause six: Power to stop and search: 
my person authorised under this Act mayLt any time stop and search any person, 
· md may require him to reveal his name 
. md address and to give an account of his 
, novements at any time during the period)f the emergency. 
::lause seven: Power to detain for ques-
ioning: where an authorised person has 
· ·easonable cause to suspect that any per-
orr has not given a full and truthful 
mswer to any question put to him under 
:lause six he may detain him for further 
tuestioning for a period of up to 48 
· L?urs, and may for that purpose remove 
, um to any place authorised for that 
mrpose ; the treatment of persons de-
ained for questioning to be prescribed by 
egulations under this Act. 
r. "'IL :--ause eight: Power to arrest: all of-
e ences under this Act shall be deemed 
~ o be arrestable offences for the purposes 
r• >f the Criminal Law Act 1967. 
u"'I . _, ause rune : Power of search and seiz-
(re: any person authorised under this 
\?t may without warrant search for and 
e1ze any article which he has reasonable 
:rounds to believe is designed or intended 
or use in contravention of this Act, or 
31 
which he has reasonable ground to believe 
constitutes admissable evidence of the 
commission of an offence under this Act. 
Clause ten: Emergency Criminal Courts: 
provision for the constitution and juris-
diction of emergency courts to be pro-
vided for by regulation subject to ratifi-
cation by Parliament. 
Clause eleven: Review Tribunal: pro-
vision for the constitution and jurisdictionof a review tribunal to be provided for byregulation subject to ratification. 
Clause twelve: Miscellaneous powers:
The Secretary of State may at any time 
make an order restricting or prohibitingpublic processions or public meetings in 
any place, or restricting access to or 
movement in any place for a specifiedperiod, subject to the right of any person 
to make an application to the Court to 
determine whether the order was justified 
in all the circumstances. 

fabian society 


The Fabian Society exists to further 
socialist education and research. It is 
affiliated to the Labour Party, both nationally 
and locally, and embraces all shades 
of Socialist opinion within its ranks-left, 
right and centre. 

ince 1884 the Fabian Society has enrolled 
thoughtful socialists who are prepared to 
discuss the essential questions of demo


, cratic socialism and relate them to practical 
plans for building ocialism in a 
changing world. 

· Beyond this the Society has no collective 
policy. It puts forward no resolutions of 
a political character, but it is not an organisation 
of armchair socialists. Its members 
are active in their Labour Parties, Trade 
Unions and Co-operatives. They are representative 
of the labour movement, practical 
people concerned to study and discuss 
problems that matter. 

The Society is organised nationally and 
' locally. The national Society, directe~ by' an elected Executive Committee, publishes 
pamphlets, and holds schools and conferences 
of many kinds. Local Societies-
there are one hundred of them-are self 
governing and are lively centres of dis


: cussion and also undertake research. 

Enquiries about membership should be 

ent to the General Secretary, Fabian 
Society, 11 Dartmouth Street, London, 
SW1H 9BN; telephone 01-930 3077. 

the authors 

The authors of thi pamphlet were member 
of an informal group drawn from 

taff and student of the Faculty of Law 
of the Queen's University, Belfa t. They 
had no official tanding, and repre ented 
no one and the views expre sed in this 
pamphlet are per onal to them elve . he 
group was formed becau e it was felt that 
law students and law teachers might be 
able to contribute con tructively to public 
discussion of some a pects of the Northern 
Ireland problem, and this pamphlet 
wa produced primarily a a basis for such 
discussion. The group was drawn from 
people with widely differing view on the 
immediate ituation in orthern Ireland, 
and from an even wider variety of background 
, but were united in their oppo ition 
to indiscriminate or reckless or unnece 
ary or unlawful use of violence 
either by the security force or by anyone 
el e. he group did not claim to be 
" apolitical " or impartial in their approach 
to the subject, but it did claim to 
repre ent a variety of political viewpoints 
and to share a re pect for facts and for 
informed and rea oned analysis. 

The members of the informal group 
were: R. . Bentley (third year law 
student) J. 0. Brady (fourth year law 
tudent) J. A. aldwell ( econd year law 
tudent) T. B. Hadden (lecturer in law) 

G. Kerr (lecturer in law) N. Lambert 
(third year law student) L. J. Lysaght, 
Junior (visiting lecturer in law) J. . 
McCrudden (second year law tudent) P. 
V. McGinley (third year law student) 
Palley (profes or of law) W. L. Twining 
(profe sor of law, chairman of working 
party) M. P. Leneghan (third year law 
student, ecretary of working party). 
Cover design by Dick Leadbetter. Printed 
by Civic Press Limited (Tu), Civic Street, 
Glasgow G4 9RH. 

I BN 7163 0416 3