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".