Power of Secretary of State to Direct the Closure etc. of Roads

New clause 16 – in the House of Commons at 3:42 pm on 8 April 1987.

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'The following section shall be inserted after section 19 of the 1978 Act— Power of Secretary of State of direct the closure etc, of roads.19A.—(1) The Secretary of State may by order direct—

  1. (a) that any highway specified in the order shall either be wholly closed or be closed to such extent, or diverted in such manner, as may be so specified;
  2. (b) that any highway specified in the order, being a highway which has already been wholly or partly closed, or diverted, in the exercise or purported exercise of any power conferred by or under a relevant enactment, shall continue to be so closed or diverted by virtue of the order.
(2) Any person who, without lawful authority or reasonable excuse (the proof of which lies on him), interferes with
  1. (a) works executed in connection with the closure or diversion of any highway specified in an order under this section (whether executed in pursuance of any such order or in pursuance of the exercise or purported exercise of any such power as is mentioned in subsection (1)(b) above), or
  2. (b) apparatus, equipment or any other thing used in pursuance of any such order in connection with the closure or diversion of any such highway,
shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
(3) In this section 'relevant enactment' means section 19(2) or (3) above, section 17(2) or (3) of the Northern Ireland (Emergency Provisions) Act 1973, or the Civil Authorities (Special Powers) Act (Northern Ireland) 1922.(4) Nothing in this section shall prejudice the operation of section 19(2) or (3) above.".'. —[Mr. Scott.]Brought up, and read the First time.

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea 3:57, 8 April 1987

I beg to move, That the clause be read a Second time.

I shall speak briefly to the new clause because it represents no change of policy and will not lead to any more road closures. It is merely intended to clarify the legal basis of the closures which are already in force and which were authorised under a range of earlier enactments. A considerable number of highways and border crossings have been physically closed for many years under the authority of a general order made in 1970 under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 by the then Minister of Home Affairs. The legality of that order has been preserved since 1973 by appropriate transitional clauses in emergency provisions legislation.

Any closure or continued closure of a particular highway on border crossing has social, economic and political consequences which must be considered in conjunction with security requirements. The decision appropriately rests, and should be seen to rest, with the Secretary of State. My right hon. Friend and I keep the need for the closure of border crossings under constant review. The new clause will make it clear that the closure or continued closure of any border crossing has been specifically authorised by the Secretary of State and details will be published in the Belfast Gazette.

Photo of Mr Enoch Powell Mr Enoch Powell , South Down

We find ourselves in the not uncommon difficulty on Report that a substantial slab of legislative material is placed before us which we do not have the same opportunity to examine in detail as would be available to us in Committee. In particular, this is probably experienced by other hon. Members in considering this and subsequent Government new clauses.

I am sure that the Minister will readily respond to the queries which arise in the minds of those studying the new clause. He has explained that it enables the Secretary of State, by an order, to validate—I am not seeking to use the correct legal expression—closures which have taken place under existing enactments and, particularly in view of subsection (4) of the new clause, closures which may have taken place under section 19 of the emergency provisions Act 1978.

The difficulty that some of us find in studying it is that it apparently applies, for example, to subsection (1)(b) of the new clause where highways already closed under those enactments have that closure confirmed by an order made by the Secretary of State under the new clause, whereas in subsection (1)(a) he appears to be acting de novo. In subsequent (1)(a)—it does not seem that any other part of the new clause must he construed with that subsection — we are creating a new power for the Secretary of State to order the closure of a highway. No doubt it is desirable that there should be power, for emergency reasons and otherwise, for the closure of highways to be ordered.

This new clause is to be inserted in an emergency powers Bill, so presumably the only closure which is being envisaged in the new closures which would occur under subsection (1)(a) is a closure deemed necessary by the Secretary of State for the purposes of the emergency provisions Act. In other words, what one misses as to subsection (1)(a) is anything which directs the Secretary of State to have regard to the sort of considerations which in the other provisions of the Bill justify the powers which are taken in exercising his order-making power under subsection (1)(a). I am not certain that I am yet receiving signals that I have successfully transmitted my message to the Minister, so perhaps I may take another moment or two to make sure that, since we are not in Committee, my point has been seized.

If we take subsection (1)(a) as it stands and in isolation —it does not appear to be qualified by any other part of the new clause except by subsection (4), which does not interfere with what I am saying—it seems to create an unlimited power on the part of a Secretary of State by order to direct that a specified highway shall be closed. That seems to be out of line with the general purposes of the Bill into which the provision is to be inserted. It does not, for example, say that, if the Secretary of State is satisfied that the closure of any specified highway is necessary for the purposes of the Bill, he may by order authorise its closure. It creates an apparently unrestricted and unlimited order-making power to close highways.

I accept that when we get to subsection (1)(b) all is well, because we are then dealing with highways which have been closed under enactments which give the Secretary of State power, for emergency purposes, for a highway to be closed. It may be that in subsection (1)(a) we have inadvertently created a new and unlimited power on the part of the Secretary of State by order to close highways and thus short-circuit the other provisions for so doing.

I am glad to have received some signals of comprehension, if not of agreement, from the Minister.

Photo of Mr Seamus Mallon Mr Seamus Mallon , Newry and Armagh

Those of us who foresaw the Bill and that within it there would be a lessening of the derogation from the normal practices will be disappointed by the proposing of the new clause. It deals with probably one of the most emotive issues in Northern Ireland life, yet here it is being re-enacted—because that is exactly what it is — in a piece of legislation that we had all hoped to welcome as an easing of the derogation from the 1978 Act. The Minister is aware of the problems that that has created in the past, is creating at the moment and will create in future.

The border of Northern Ireland is not a straight line running from A to B. It moves in an irregular fashion through different roads and through people's land. I know, from experience of my constituency and of the area in which I live, of the difficulties that this creates, especially for the farming community. I shall give an example of those difficulties. To get from one field to another, two farmers must travel approximately six miles to fodder cattle or till land in an adjoining field. This is an on-going problem for anyone involved in the agriculture industry. That work is not done once a week, once a month or once every six months; it must be done on a daily basis.

That is what the new clause deals with. It also deals with other aspects of people's lives. The shopping, communication and commerce aspects of many people's lives do not relate to Northern Ireland; they relate to the Republic of Ireland. Again, I can cite instances of people having to travel many miles to obtain the ordinary necessities of Fife because of the closure of border roads. That is an emotive factor. In the past it has created many problems for people.

I am not convinced that there are any security benefits in closing roads. I should like to hear the opinion of the Minister of State about the reduction of terrorist incidents. I should like him to show some proof of the effect of the closure of any road in Northern Ireland, or whether it can be quantified in such a way that it can be said that it has reduced terrorist incidents.

We need some definition of the term "highway". When we use that term, we are not talking about the type of road which is closed in Northern Ireland; we are talking about something different—that which runs through a person's farm and which is essential to his tending of that farm.

The new clause is a retrograde step, especially since we are dealing with an international agreement between the two Governments of the north and south of Ireland. At the same time as this agreement is trying to promote security and co-operation between them so that we shall be able to live free of terrorism, the two Governments, which are beginning to work closely together, are blocking off the roads between their jurisdictions.

We must be in no doubt that that will be the net effect of this measure. No doubt the Minister will say that in effect it simply regularises the situation. The Minister may have some pangs when he starts to regularise that which is implemented under the infamous Civil Authorities (Special Powers) Act (Northern Ireland) 1922. The Minister would have grave reservations about that. This is an emotive issue. The clause will make life very difficult for the people living in the border areas of Northern Ireland. It should be opposed.

Photo of Mr James Molyneaux Mr James Molyneaux , Lagan Valley

The hon. Member for Newry and Armagh (Mr. Mallon) focused his thoughts on the frontier region and drew attention to the inconvenience that would be caused. He represents a constituency in that region, so I suppose that that is natural. But it would be a great mistake to imagine that only the frontier region is affected. The hon. Gentleman drew attention to the fact that landowners and farmers were sometimes inconvenienced. He said that on some occasions they have to drive six miles to go into a field on the other side of the barricade. It may be of some small comfort for him to know that in an area surrounding one of our major airports a farmer whom I know has to drive seven and a half miles simply to get into a field that adjoins his dwelling house.

No one will deny that inconvenience can be and is caused. The hon. Gentleman said that some inconvenience has an effect on people's lives. However, if there is any possibility that these measures will preserve life, even if they result in the preservation of only one life, we must all accept and bear with fortitude the inconvenience and hardship caused by them.

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

The right hon. Member for South Down (Mr. Powell) described this as a substantial slab of legislation, and the hon. Member for Newry and Armagh (Mr. Mallon) made quite a meal of what is a modest tidying-up measure. Let me deal with the points that they made.

I can tell the right hon. Member for South Down that neither in the so-called Porter order of 1970—the order made by the then Minister for Home Affairs— nor in section 19 of the Northern Ireland (Emergency Provisions) Act 1978 was the power to close roads to be exercised only in relation to the emergency. We follow the same pattern in this legislation. But, in practice, no road has been closed under these powers except for reasons connected with the emergency. This measure is in an emergency provisions Bill and the power would in practice be exercised only in relation to roads where closure was necessitated by the emergency. That has been and will continue to be the practice.

I am slightly surprised that the hon. Member for Newry and Armagh takes odds with the fact that the Government consider it more appropriate to update the provision and to make it clear that the authority for this rests with the Secretary of State rather than on an order made about 17 years ago by a Minister for Home Affairs in a Stormont Government. There are serious political, social and economic matters which should be taken into account when border closures are being considered. Indeed, the hon. Gentleman mentioned their impact on local farms, and so on, which we always take into account when we review these matters.

It is the considered judgment of the security forces in Northern Ireland—the police and the Army—that the sensible and selective closure of roads in the border areas in particular can make a substantial contribution to the improvement of security in those areas.

Photo of Mr Seamus Mallon Mr Seamus Mallon , Newry and Armagh

Can the Minister tell us how many border roads are closed at present and where they are, because then we might be able to draw the same conclusion from that which the Minister is drawing from the opinion of the Royal Ulster Constabulary and the Army?

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

I cannot attempt this afternoon to enumerate the roads that are closed, but I can give the House an idea of the scale of closures. There are roughly 300 road crossings between Northern Ireland and the Republic of Ireland. Of those, approximately 100 are closed, of which about half would have been closed under the Northern Ireland (Emergency Provisions) Act 1978 and about half under the so-called Porter order. That is the scale of present closures.

Both intelligence and observation show that a considerable number of incidents still happen involving the use of roads crossing the border. We need to look carefully, with the advice of our professional security advisers, to see when and where such closures, balanced with the other factors that I mentioned, can make a significant contribution to security. Sensible and selective closures can be of some help.

This is a tidying-up exercise. In itself, it will not result in any new road closures, but it will put them, including those which affect border crossing, on a proper footing.

Photo of Mr Enoch Powell Mr Enoch Powell , South Down 4:15, 8 April 1987

The Minister referred to the reasons for the closures which take place under existing legislation. I was just looking at section 19 of the Northern Ireland (Emergency Provisions) Act 1978, the operation of which is specifically preserved by subsection (4) of the new section. In referring to the closure of roads it says: so far as he considers it immediately necessary for the preservation of the peace or the maintenance of order". It is not clear whether such a provision is imported into the terminology of new section 19A(1)(a).

It might be germane if the Minister could tell the House to what parliamentary procedure an order made under these powers will be subject.

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

These orders are not subject to any parliamentary procedure. They never have been and it is not proposed that they will be in this legislation. The part of the 1978 Act to which the right hon. Gentleman refers does not refer specifically to the emergency, but I assert —I hope that the House will accept this—that the very fact that it is contained in emergency provisions legislation means that it would not be used for any other purpose. It has not been in the past and will not be in the future.

Photo of Mr Ken Maginnis Mr Ken Maginnis , Fermanagh and South Tyrone

Will the Minister assure us that we need not take literally his assurance that this legislation would not lead to further closures of cross-border roads? Did he mean that it would not necessarily mean the closure of cross-border roads, or does he preclude the closure of any further cross-border roads?

It might be well that those listening to the Minister would believe that that was the possibility. The most recent victim of terrorism in my constituency was murdered last Friday. His murderers escaped across a road which I have constantly drawn to the attention of the Secretary of State, the previous Secretary of State and the Secretary of State before that. Despite the fact that the road is still used for the murder of my constituents, the Northern Ireland Office does nothing about it. Can the Minister assure us that he is not precluding the possibility of something more positive being done about that road?

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

If the hon. Gentleman reads my words, he will see that I said that, of itself, this provision will not lead to the closure of more border roads. But, of course, proposals for road closures will be considered on their merits as they come forward from the security forces.

Photo of Mr Martin Flannery Mr Martin Flannery , Sheffield, Hillsborough

It is noticeable that all the speakers so far have an intimate knowledge of Northern Ireland because they are Members of Parliament for Northern Ireland. But some of us have to try to grasp the matters without having such an intimate knowledge.

I have looked at section 19, and, short of war—one of the points that Sir George Baker made was that there is not a war, despite what some claim — section 19 appears to he adequate. I cannot understand the fundamental difference between the new clause and section 19. I know that there are deep feelings about this, but some of us would like to know the precise difference. Security forces anywhere, whether police in a peaceful situation or security forces in a difficult situation such as that in Northern Ireland, always demand more security than is justified at a fixed moment.

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

Approximately half the border roads are closed under the 1970 order made by the then Minister for Home Affairs. There is slight doubt about the legal validity of some of those road closures. The order was cast in wide terms and there is some legal doubt as to whether it was used properly to justify the closure of a particular road. Therefore, we needed to validate those closures where it is considered they should continue, but section 19 of the 1978 Act that enables the Secretary of State to authorise actions to close roads is not applicable because many of the roads have been closed for the past 17 years. We are seeking to validate those closures to ensure that they are on firm legal ground for the future and therefore validated by the Secretary of State upon authority that is published in the Belfast Gazette.

Photo of Mr John Biggs-Davison Mr John Biggs-Davison , Epping Forest

I did not follow the reply that my hon. Friend the Minister gave to the intervention made by my hon. Friend the Member for Fermanagh and South Tyrone (Mr. Maginnis). He mentioned a border crossing that he said should have been closed and, as I understand it, he made that suggestion to previous Secretaries of State. Therefore, will my hon. Friend urgently undertake a careful investigation of the case for the closure of that border crossing in view of the appalling toll of murder in Fermanagh and South Tyrone?

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

As I said to the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis), when the security forces put forward recommendations for road closures we consider them on their merits. Obviously what the hon. Member for Fermanagh and South Tyrone has said will be drawn to the attention of the security forces, but I cannot go further than that at the moment.

Photo of Mr Seamus Mallon Mr Seamus Mallon , Newry and Armagh

The Minister has informed us that one third of border roads are closed. When we consider the number of border roads that are surveyed by lookout posts and the number that have permanent checkpoints, we narrow down the number substantially. Again I ask the Minister what is the evidence over the past 16 years to suggest that the closure of any border road has prevented the type of murderous activity to which the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis) has referred? By closing a specific road, how do we know that one simply does not point the terrorist in the direction not just of another road, but along another route? Those routes exist across fields and towns right along the border. I hope that the Minister can quantify the evidence for us because it appears that, rather than being a deterrent against people involved in violent activities, such road closures have been used as a sop to those who wish to see the closure of border roads.

Photo of Mr Nicholas Scott Mr Nicholas Scott , Chelsea

This debate was not intended to run into a general discussion of the principle of whether particular road closures or the general policy of border road closures is wise. Obviously there is a distinction between the views held by the hon. Member for Newry and Armagh and the hon. Member for Fermanagh and South Tyrone and those who advise the Secretary of State and myself on security policy in Northern Ireland. I am prepared to rest on professional judgment in such matters.

Question put and agreed to.

Clause read a Second time, and added to the Bill.