The Gazette 1972

Special Powers Act challenge succeeds in N.I. High Court

DECISION AFFECTS AUTHORITY OF TROOPS A challenge to the British Army's authority under part of the Stormont Special Powers Act was upheld by Northern Ireland's Lord Chief Justice, Sir Robert Lowry, and two other High Court Judges. The Crown is to appeal to the House of Lords against the decision announced at a special sitting of the High Court in Belfast when the three judges ordered con- victions to be quashed against five men, including two M.P.s. The decision follows court proceeding stretching back to last August involving the M.P.s John Hume and Ivan Cooper, and Michael Canavan, Hugh Logue and William Gallagher. They were fined £20 each at Derry Magistrates' Court last September after they " remained in an assembly of three or more persons, after the persons constituting that assembly had been ordered to disperse by a commissioned officer of H.M. Forces then on duty, contrary to Regulation 38 (1) of the regula- tions under the Civil Authorities (Special Powers Act) 1922-43." Mr. James McSparran, Q.C., appealed on the following grounds: 1. That having regard to Section 4 (1) (3) of the Government of Ireland Act, 1920 (hereinafter referred to as " the 1920 Act") Regulation 38 (1) in purporting to confer the powers which it does on " any commis- sioned officer of Her Majesty's forces on duty" and on " any member of . . . Her Majesty's forces on duty acting on his behalf," is outside the competence of the Northern Ireland Parliament and of the Minister who purported to make the regulations. 2. That Regulation 38 (1) does not conform to the powers of the Northern Ireland Parliament or Executive under the 1920 Act to make laws for the peace, order and good government of Northern Ireland or to the power of the Minister of Home Affairs under Section 1(3) of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 (hereinafter referred to as "the Secial Powers Act") to make regulations for the preservation of the peace and the maintenance of order, because it is not conclusive to peace, order or good government or in particular to the preservation of the peace and the maintenance of order and because it is excessively far- reaching and oppressive " Convictions Bad on their Face In the course of his judgment yesterday, Sir Robert Lowry said: " If the first of these submissions is sound, it follows that Regulation 38 (1) is. ultra vires , at least in so far as it contains a reference to officers and mem- bers of Her Majesty's forces on duty, and that each conviction is bad on its face and ought to be brought up for the purpose of being quashed. The effect of the second submission depends on the length to which it can be carried as I shall later indicate. The parties agree that the validity of regulations made under the Minister must be tested not only by looking at the statutory

provision (in this case Section 1 (3) of the Special Powers Act), conferring power to make the regulations but also by resorting to the powers and limitations contained in Section 4 (1) of the 1920 Act. "Regulation 38 was first introduced by means of S.R. and O. (Northern Ireland) 1966, No. 173. New Reguation of 1970 replacing that of 1966 " A new regulation was substituted by S.R. and O. (Northern Ireland) 1970, No. 214: " 38.—(1) Where any member of the Royal Ulster Constabulary not below the rank of inspector or any commissioned officer of Her Majesty's forces on duty suspects that any assembly of three or more persons may lead to a breach of the peace or serious public disorder or may make undue demands upon the police force or upon Her Majesty's forces, he, or any member of the Royal Ulster Constabulary or Her Majesty's forces on duty acting on his behalf, may order the persons constituting the assembly to disperse forthwith and any person who thereafter joins or remains in the assembly or otherwise fails to comply with such order shall be guilty of an offence against these regulations. " (2) Without prejudice to Section 20 (1) of the Inter- pretation Act (Northern Ireland) 1964, nothing in this regulation shall, derogate from the operation of any statutory provision or rule of law whereby any conduct of a person is made an offence" The Government of Ireland Act 1920 He added: "The statutory provision relevant to the applicants* primary argument is Section 4 (1) of the 1920 Act which, as far as material, provides: "4 (1) Subiect to the provisions of this Act . . . the Parliament of Northern Ireland shall . . . have power to make laws for the peace, order and good govern- ment of . i.. Northern Ireland with the following limita- tions, namelv, that they shall not have power to make laws except in respect of matters exclusivelv relating to the portion of Ireland within their iurisdiction. or some part thereof, and (without prejudice to that general limitation) that thev shall not have power to make laws in respect of the following matters in particular, namely: " (3) TTie Navy, the Army, the Air Force, the Terri- torial Army, or any other naval, military or air force, or the defence of the realm, or any other naval, military or air farce matter (including any pensions and allow- ances payable to persons who have been members of or in respect of service in such force or their widows or denendants. and provision for the training, education, emplovment and assistance for the reinstatement in civil life or persons who have ceased to be members of any such force): " Anv law made in contravention of the limitations imposed by this section shall, so far as it contravenes these limitations, be void". 74