The weapons which the Government have at their command: immunity and the Crown Proceedings Act of 1947

In the light of yesterday’s post regarding the provision of immunity from prosecution for soldiers, here is discussion from a parliamentary debate on tidying up legislation to retrospectively legalise the exercise of policing powers by British soldiers in Ireland.

In the middle of the debate (on 23rd February 1972), Jeremy Thorpe gave an interpretation of the Crown Proceedings Act of 1947. Thorpe was a barrister and was leader of the Liberal Party at the time.

Mr. Jeremy Thorpe:

I should like to start by echoing what the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) said: namely, that since the troops are in Northern Ireland as a result of a political decision of this House, they are entitled to all the protection and immunity to which they are reasonably entitled under the law. I cannot speak for the whole House, but certainly that is the view of my hon. Friends and, I suspect, of the vast majority of this House…

…The reason why I say that I believe that the Forces of the Crown have immunity in any event is the existence of the Crown Proceedings Act, 1947. As the right hon. and learned Attorney-General will know, Section 53 of that Act expressly provided that its application could be extended to Northern Ireland, and by Statutory Instrument No. 1836 of 1949, the Act could apply in the courts of Northern Ireland. Section 11(1) says: “Nothing in Part I of this Act shall extinguish or abridge any powers or authorities which, if this Act had not been passed would have been exercisable by virtue of the prerogative of the Crown, or any powers or authorities conferred on the Crown by any statute, and, in particular, nothing in the said Part I shall extinguish or abridge any powers or authorities exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of the realm “— and I repeat those words— for the purpose of the defence of the realm or of training, or maintaining the efficiency of, any of the armed forces of the Crown. Subsection (2) says that the Secretary of State may, if satisfied that the act or omission complained of in regard to the Armed Forces of the Crown was necessary for any such purpose as mentioned in the previous subsection, issue a certificate. That is to say, if he were prepared to certify that the acts or omissions were in furtherance of the defence of the realm he could issue a certificate to the effect that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matter so certified. So we already have a complete protection for the Armed Forces of the Crown where they are acting in defence of the realm and the Secretary of State is prepared so to certify. The immediate panic that there will be a series of actions in tort against the Armed Forces of the Crown seems to me, with great respect, to show insufficient appreciation of the weapons which the Government have at their command under the 1947 Act.

After some interruptions, Thorpe continued:

I entirely agree with the right hon. and learned Gentleman. I think he has a point. But we must look at the situation in which a private criminal prosecution can be brought against a member of the Armed Forces of the Crown. Certainly, a public prosecution would be within the discretion of the Director of Public Prosecutions in Northern Ireland and the existence of the certificate issued by the Secretary of State would be for him an indication that these matters could not be proceeded with.

I entirely accept that the Government are right to introduce legislation which will have the effect of clarifying the law and giving an immunity to the Forces of the Crown…

While Thorpe was, in theory, discussing the public suing soldiers for the wrongful use of arrest powers etc, he clearly indicates the extent to which the legal powers existed under which the DPP had discretion in bringing prosecutions. And he is quite specific in how the British government had the legal capacity to provide immunity to its forces. Did that capacity extend to immunity from prosecution for shooting and killing civilians? That isn’t clear and the extent to which the existence of such a certificate of immunity would be publicly disclosed isn’t apparent. What Thorpe’s contribution reflects, at the very least, is a concern to provide the armed forces with immunity.

Why should that be considered significant. This was all said less than a month after Bloody Sunday, and less than ten days after the Widgery Tribunal began its hearings. It is not coincidental.