180 / 196
Detention without trial and
proper safeguards
By Professor Claire Palley, Dean of the Faculty of Law,
Queen's University, Belfast.
At the height of World War II when powers of intern-
ment were challenged in the courts, Lord Macmillan
made it clear that "Nothing could be more unfortunate
than that in a matter in which scrupulous accuracy is
imperative, the impression should be created that the
safeguards prescribed for the protection of detained
persons are carelessly observed and administered." It is
even more serious if ,as in the case in Northern Ireland
today, adequate safeguards are not initially established.
While so great an invasion of personal liberty as deten-
tion without trial on information received may be
necessary in time of emergency, and while accepting
that such detention must be as effective as possible,
safeguards to minimise the possibility of grave injustice
must be imposed at the same time. Obviously a variety
of procedures and laws apply in different countries. But
surely in all parts of the United Kingdom British stan-
dards of democracy dictate that the best procedural
safeguards should have been adopted. In World War
II better safeguards relating to internment existed in
the United Kingdom than do now in Northern Ireland.
In newly independent nations in Africa and Asia, where
similar threats to national life have occurred, their
law requires procedures concerning internment which
better protect the citizen against arbitrary and un-
justified detention. Even constitutions drafted by legal
advisers of the Commonwealth and Colonial Office pro-
vided more satisfactory procedures than those current
in Northern Ireland.
It is not merely democratic tradition that requires
the adoption of such safeguards in the United Kingdom.
Already the United Kingdom risks action in the
European Court of Human Rights for breach of Article
3 of the European Convention on Human Rights which
absolutely prohibits torture or inhuman or degrading
treatment. Presumably this risk led to the appointment
of the Parker Committee to re-examine the interroga-
tion methods used by the Army so that they should
conform to the Convention. Presumably it also led to
the form of wording in the Compton Report which
distinguished between physical ill-treatment and bruta-
lity. While it is arguable that Article 3 has - been
breached, it is clear, if the existing safeguards under the
Civil Authorities (Special Powers) Act (Northern
Ireland) 1922 are examined, that the United Kingdom
is in breach of Article 5 read with Article 15 of the
European Convention on Human Rights. Article 15
allows the United Kingdom Government to depart
from its obligations under the Convention (the duty to
secure liberty of the person) in time of emergency. But
it can do this only "to the extent strictly required by
the exigencies of the situation". This means that no
tougher action than is necessary is permitted. Thus in
the Lawless Case (1961) the European Court only up-
held the Republic of Ireland's preventive detention law
(the Offences Against the State Amendment Act 1940)
because that law "was subject to a number of safe-
guards designed to prevent abuses in the operation of
the system of administrative detention." Similar safe-
guards to those in the Republic, do not exist in
Northern Ireland. The operation of internment in
Ireland was subject to constant supervision by the Irish
Parliament. (This was also the case under Regulation
18B in the United Kingdom during the Second World
War, when at least once every month the Home Secre-
tary had to report his actions under the Regulations
to Parliament. He also had to state the number of cases
in which he had declined to follow advice of an advisory
committee on internment.) Apart from regular report-
ing to Parliament in the Republic, the Dail can end the
operation of detention powers at any time by resolution.
In contrast, the Northern Ireland Parliament neither
has powers of constant supervision nor a rapid pro-
cedure for ending internment by resolution.
Another significant ground for the European Court's
decision that the Irish detentions did not breach the
Convention was that the Detention Conitfiission, esta-
blished to hear appeals against detention, could give
decisions binding on the Irish Government which would
automatically result in the release of internees. (In
France during the O.A.S. emergency the advisory body
could likewise give binding decisions.) In Northern
Ireland, as in the United Kingdom during the War,
decisions are merely advisory and can be ignored by the
detaining authorities.
Thirdly, the Irish Government released prisoners who
gave an oath—which was later revised to avoid affront-
ing political conscience—to observe the law and refrain
from illegal activity. In Northern Ireland the present
authorities will release prisoners who take a somewhat
similar oath, but the oath differs in that it requires
internees to renounce by implication their Republican
principles. For this reason some internees have refused
to take the requisite oath .
To avoid a breach of the European Convention,
proper Parliamentary supervision must be introduced.
Arguably supervision by a regional assembly (the Parlia-
ment of Northern Ireland) may not suffice as it is the
High Contracting Parties to the Convention who are
empowered to take action derogating therefrom. Apart
from the need to observe international obligations, the
United Kingdom with its traditions of democracy
should not be satisfied with safeguards against detention
which are inferior to those of other nations.
The Northern Ireland system is unique in that an
order of detention is without time limit. During this
indefinite period interrogation is permitted before any
decision on internment is reached. In practice 28 days
is usually observed as a limit, but in some cases deten-
tion has been far longer. During this period detainees
cannot make representation to the independent advisory
committee. People are presumably arrested on reliable
information and not on mere vague suspicion. (In
Tanzania there is the safeguard that information lead-
182