§ (1) Where a person being a British subject but not being a person subject to the Naval Discipline Act or to military law, is alleged to be guilty of an offence against any regulations made under the Defence of the Realm Consolidation Act, 1914, he shall be entitled, within four clear days from the time when the general nature of the charge is communicated to him, to claim to be tried by a Civil Court with a jury instead of being tried by a court-martial, and where such a claim is made in manner provided by regulations under the last-mentioned Act the offence shall, as respects the person so charged, be deemed to be a felony punishable with the like punishment as might have been inflicted if the offence had been tried by court-martial, and any prosecution and trial of the offence shall be conducted accordingly:
§ Provided that this Sub-section shall not apply where the offence is tried before a Court of Summary Jurisdiction.
§ (2) The Vexatious Indictment Act, 1859, as amended by any subsequent enactment shall apply to a felony under this Section as if it were included among the offences 671 mentioned in Section one of that Act, but a felony under this Section shall not be triable by a Court of Quarter Sessions.
§ (3) For the purpose of the trial of a person for a felony under this Section the offence shall be deemed to have been committed either at the place in which the same actually was committed or in any place in the United Kingdom in which the offender may be found or to which he may be brought for the purpose of trial.
§ (4) An indictment under this Section shall not be deemed void or defective by reason that the facts or matters alleged in the indictment for the felony amount in law to treason; and if the facts or matters proved at the trial of any person indicted for any felony under this Section amount in law to treason, the person shall not by reason thereof be entitled to be acquitted of such felony; but no person tried for such felony shall be afterwards prosecuted for treason upon the same facts.
§ (5) In the event of invasion or other special emergency arising out of the present War, His Majesty may by Proclamation forthwith suspend the operation of this Section, either generally or as respects any area specified in the Proclamation, without prejudice, however, to any proceedings under this Section which may be then pending in any Civil Court.
§ (6) In the application of this Section to Scotland "a Civil Court with a jury" means the High Court of Justiciary, and Sub-section (2) shall not apply.
§ Mr. TREVELYAN
I beg to move, in Sub-section (1), to leave out the words "being a British subject but not being," and to insert instead thereof the words "not being an alien enemy nor."
On the Second Reading of this measure, I raised the point whether it was necessary to confine this amending Bill to British subjects. I did not hear in that Debate any adequate reason for not restoring the procedure of the Civil Courts to foreigners, or, at any rate, to those who are not enemy aliens. The genesis of this amending Bill were exceptionally severe criticisms, by lawyers in another place, of the abolition of the right to appeal to the Civil Courts. This Bill gives back to British subjects, and only to British subjects, the right of being tried in the Civil Courts. I hope that, by the Amendments which we may have to-day, it may be a very thorough retraction of the system 672 under which martial law might be imposed upon British subjects. But what I wish to know is what we are going to say to allied or friendly or neutral Powers when we arrest, try, and punish subjects of theirs by a procedure which we admit is not good enough for ourselves. I do not think that the reply of the Attorney-General the other day was adequate.
§ Mr. TREVELYAN
At any rate, the reasons which he gave in anticipation of criticism. He said that on two occasions it had been difficult to distinguish the nationality of men who had been arrested under the Act. In two cases enemy aliens had tried to shelter themselves under a false nationality. I confess I do not understand the basis on which you try even an enemy alien by martial law, because I suppose the civil tribunals of England are probably not prejudiced more in their favour than martial tribunals. Really it does not seem to me to be a good enough reason, because there are two cases where enemy aliens have tried to pretend that they belonged to allied or friendly countries, to deny to the subjects of other countries—Dutch, Scandinavian, American, French, Russian, Belgian, and Servian citizens—the appeal to the Civil Courts which they would have had but for the War and this legislation. I think the Government would do wisely if, having agreed to restore their civil rights to British citizens, they also agreed to restore, except in the case, of enemy aliens, the rights which aliens have hitherto had—to make a thorough change and restore civil rights all round.
§ Sir J. SIMON
This question was glanced at in the Debate on Second Reading, and with a great deal that my hon. Friend has said, or at any rate with the spirit in which he has said it, I should find myself in hearty agreement. Still, I must ask the Committee to consider whether we should not in this respect keep the Bill as it is. There are some changes which it appeal's to me, as a result of the Second Reading Debate and other criticisms, it will be well to introduce, but this change is one which, viewing it as fairly as I can and with no prejudice against the right of being tried by jury, I ask the Committee not to make. As long as you are prepared to take this broad ground, that everybody is to exercise the right of 673 being tried by judge and jury without question, there is obviously no reason why you should distinguish between alien and British subjects. That is the condition of things under which in ordinary times we live, and the sooner we get back to that state of things the better we shall all be pleased. That is right enough. But I do not think that my hon. Friend really suggests—indeed, his Amendment shows that he does not—that we are so to change this Bill as to substitute for British subjects anybody of any nationality. On the contrary, what he proposes is that we should exclude from the operation of this Clause subjects of enemy states, but that instead of limiting it to British subjects we should include also foreigners so long as they are not subjects of enemy states.
I must ask the Committee to consider what is the practical objection. The practical objection to that is this: It is agreed on all hands that the procedure which we are now framing must be one that will work rapidly, because we are dealing with a condition of war, and it is absolutely essential that the enforcement of the defence of the realm regulations should proceed with rapidity. If a man comes forward and claims this right—I will not call it a privilege, because it is the traditional right of British subjects to enjoy trial by jury—if he is a British subject we can test what he says. If he is a British subject he is either British born or he has been naturalised. If he is British born the executive can without any difficulty find his birth certificate and test where he was born. If, on the other hand, he is a naturalised British subject, his naturalisation can be discovered and checked in a moment by reference to the proper records and authorities. Supposing, however, that the authorities—I must put it clearly—find a spy. You do not suppose a spy begins by saying, "Mind you, I am a German." Not at all. He says, "It is true that I look like a German, that I speak like a German, that I act like a German, but I am a German-Swiss, or a German-Belgian, or," it may be, "a German-American." What is the Executive to do in that matter? You will observe that under this Bill, if he claims as a right that he is the subject of a neutral State, my hon. Friend in his Amendment says that his claim to be tried by a jury is good. On the other hand, if his claim to be a neutral subject is not well-founded, he not only is not entitled to trial by jury, but trial by jury would be wholly ultra vires. There would 674 be no provision for it at all. Viewing this thing as best I can and with a desire to make it work practically, I do not feel it possible to recommend to the Committee that we should extend this Clause to other than British subjects—for reasons which I have pointed out.
I would a little demur to the suggestion made by those who criticise this Bill that we are substituting some tribunal which is likely to work injustice. The tribunals which hitherto have been working under the Defence of the Realm Act have been working justly. Of that I have the strongest conviction and belief, and I have strong reasons to know, because it has been, to a large extent, my duty in very serious cases to observe the course of events, and it may be to advise, and even to direct, what should be done. That they have worked justly I do not question; and it is greatly to the credit of those tribunals, and those who compose them, that at a time when passion is easily aroused and suspicion is very easily inflamed, they preserved the good sense which I believe to be characteristic of them. While I trust I have as strong an attachment as anybody in this House to the principle of trial by civil tribunal and trial by the help of a jury, as one of the rights which British subjects ought to enjoy whenever and wherever it is at all conceivably possible, at the same time I cannot really subscribe to the doctrine that if at this present time you put twelve jurymen with a judge of the High Court to direct them, a person with a foreign-sounding name, accused of some act of treachery or suspicion, is quite certain, automatically or as a matter of course, to get a perfectly fair trial.
That is really one of the reasons why we have thought it desirable to give British subjects a choice. I can imagine a case of a man conscious of his own innocence saying, "Though I am a British subject, though I have a traditional right to be tried by jury, I think in the circumstances I will be content with this military tribunal, which is well acquainted, at any rate, with some of the aspects of the matter, rather than trust matters to twelve men put into a box." I do not say that in the least as an attack upon trial by jury, but all institutions are fallible in times of crisis, and I do suggest that we go as far as we fairly can go when we say that, in view of the condition that obtains in this country, we ought to do everything we can to ensure that British subjects shall have the 675 opportunity of claiming to enjoy this right. With the spirit of the remarks of my hon. Friend I am in most hearty agreement, but I must ask the Committee not to make this change in the Bill. After all, so far as we are engaged in restoring a good tradition—and that is a very important matter!—the tradition is primarily a British tradition. In conclusion, I would point out that the hon. Gentleman says that his criticism of the Defence of the Realm Act comes from observations made by Lord Loreburn, one of the constitutional authorities in another place. What, was the Amendment which Lord Loreburn moved? He wished to move to amend our Bill to the following effect:—
"Any British subject who has not accepted naval or military employment shall have the right, if he demands it, to be tried by the ordinary Courts of Law for any offence punishable by or in virtue of this Act."
I have looked through the speeches made by Lords Loreburn, Parmoor, Bryce, and Halsbury, and everyone of them dealt with this as an important matter, primarily and principally because our Bill infringed a British right. It is that right which I fully agree we ought by the terms of this Bill to restore in quite undiminished measures. I do not think a case is made out to extend it to those who are not British subjects, and the practical difficulty of working the Bill under those circumstances are such that I hope the Committee will reject the proposal.
Mr. MacCALLUM SCOTT
The Attorney-General has been as clear and lucid as he always is; I think he has been so clear that he has shown that he has not got any reasons for adhering to the limitation to British subjects in the Bill. The general principle of the Bill is that the accused person shall have the option to be tried by the ordinary Civil Court if he exercises that option within four days. To that general principle the Bill introduces a limitation that this option should only be exercised by a British subject. Why has that limitation been introduced? What is the reason the Government had in their mind in introducing this limitation? It cannot be in the nature of the offence. It cannot be the intention to punish the alien by having him tried by court-martial, because I should have thought that if there was any difference 676 in the nature of the offence as committed by an alien and as committed by a British subject the balance would lie against the British subject; it would be a much worse offence when committed by a British subject than when committed by an alien. A British subject would be guilty of a double offence; he would be guilty of a breach of" these regulations, and of the far more heinous offence of disloyalty and treachery to the country to which he owed allegiance. Of that aggravated act the alien would not be guilty. If he is an alien I think he cannot be guilty of that kind of treachery.
§ Sir J. SIMON
My hon. Friend is really mistaken about that. An alien who lives in this country comes under our law and therefore might be guilty of treason. I think a statement like that of my hon. Friend, made in the House of Commons, might have a most deleterious effect.
§ 4.0 P.M.
Mr. MacCALLUM SCOTT
The word "treason" was rather put in my mouth for the moment. It was not the word I used originally. I used the word "treachery" or "betrayal." In the case of an alien to act as a spy or to endeavour to injure this country is understandable. In the case of a British subject the endeavour to commit the same offence is really much more heinous and blameworthy. I do not think the Attorney-General will dispute that. If there is any discrimination between the character of the offence the utmost opprobrium should be reserved for the British subject who is guilty. If that is not the reason why this limitation is introduced, what is the reason? There was, I think, only one suggestion of a reason in the remarks which the Attorney-General made, and that was for expedition. Now that would be valid, I think, against this particular Amendment which introduces a further discrimination between different kinds of aliens, but it would not be valid against the Amendment which appears a little further down on the Paper which would leave that option open to all accused persons without any distinction whatever. If the object of the Government is expedition, then undoubtedly that object would best be served by giving this option to all accused persons whatsoever, and not seeking to ascertain whether they are British subjects or neutral aliens or enemy aliens. 677 There arises the question: ought this right of option to be extended to enemy aliens? And there I ask, why not? What is the object in not extending it? Is it thought that it is a worse punishment to be tried by a court-martial than to be tried by an ordinary Civil Court?
Mr. MacCALLUM SCOTT
Then, I think, that may be dismissed. Indeed, I think all the interests of the alien enemy are to be secured by being tried by a court-martial. If he were tried by an ordinary Civil Court, with a jury, undoubtedly the great public prejudice against enemy aliens at this time—a necessary prejudice—would necessarily militate against his having a fair trial. That fact being obvious, it would be perfectly safe to leave him the option of saying which Court he would be tried by. Under 1hese circumstances, I am sure no enemy alien would exercise the option at the present time of being tried by a jury; he would certainly accept trial by court-martial. I do not think the Attorney-General has really made clear what is the object of the Government in introducing this limitation. It cannot be in order to inflict a severer punishment, and it cannot be to secure expedition. The Attorney-General has thrown no light upon it so far, and I hope that before the discussion on this Amendment is ended, he may be induced to accept the Amendment a little later on the Paper to leave the option open to all persons without exception. I hope the Attorney-Genera will either accept that Amendment or will explain what is the reason which weighs with the Government in introducing this limitation into what is otherwise a very clear principle of the Bill.
§ Mr. T. M. HEALY
The hon. Gentleman opposite moved this Amendment in the interest of liberty. I think the first liberty we ought to enjoy is the liberty to dispense with the spies who come over here, that we should have the right to go about without fear of bombs, without fear of railway bridges being exploded, and other matters of that kind. Therefore, I think that those who support the Government in maintaining the Bill as it stands are standing up for the primary liberties of the subject. With regard to prisoners being court-martialled, I think those who are in favour of a jury are against the foreigner. When I was younger I prac- 678 tised a good deal before courts-martial, and a fairer tribunal could not be conceived. If I had to be tried for my life I would prefer to be tried by court-martial, and the suggestion that these foreigners who come over here and are charged with doing matters against the public interests would get fairer treatment before a jury is the most absurd suggestion.
§ Mr. HEALY
I really believe the Government, in taking the line they are taking, in restoring to the citizens of this realm the right of trial by a jury of their countrymen, are acting wisely, but I wish to say for myself, in regard to the suggestion that we were not aware of the effects of the original Act, so far as I am concerned that is not so. We knew very well what the Government were about. We knew very well what the powers of the Government would be, and for my part I heartily endorse those powers. I think it only right to say that some cases of very great difficulty have come before courts-martial, and, almost without exception, the law has been strained in favour of the accused, and acquittals have, in the main, resulted from those court-martial tribunals. I think it only right to say that of the soldiers who are dealing with these grave matters. But there is one point I would like to make, and I hope the Government will give it respectful consideration. I should like to see those men who are tried before a court-martial prosecuted by an expert—that is to say, by a lawyer. That is really the protection to which these men are entitled, because it is absurd to say that, however fair a military or a naval man may be, he knows the law and will apply it in the same spirit.
§ Sir J. SIMON
In the serious cases that have come to my notice I think I may say, without exception, that course has been followed. The military authorities have asked that they might have the assistance of the Department, and I have myself in several cases nominated some expert in criminal law who has not only presented himself for the purpose of taking the proceedings, but has examined the matter beforehand in order to be sure that the material is in proper order to be presented.
§ Mr. HEALY
I quite agree that in England that is so, but the Treasury does not allow us the luxury of lawyers in Ireland. So far as I have watched the proceedings, 679 the prosecutions in Ireland have been conducted, I think I am right in saying, in every case by military men. A pledge was solemnly made to us by the then Prime Minister, the present Member for the City of London (Mr. Balfour), with regard to the examination of prisoners in their own defence, that the Act would only be applied to England, whereas in Ireland the prisoner has been examined and cross-examined against the public pledge. It may be it is right; it may be you have a very long list of rules you have made in which you have extended to Ireland the Prisoners' Evidence Act. If so, it is against public right; it should not have been done, and, in my opinion, there were special reasons why we resisted that. I think the Mover and supporters of the Amendment are mistaken, but I think they are right to claim for the three Kingdoms that the lawyer in really serious cases should have charge of the matter. I think it only fair to the Government to say that, in the difficult circumstances in which they are placed in the administration of justice under this Act, in my opinion sufficient justice has been done in every case.
§ Sir RYLAND ADKINS
The hon. and learned Gentleman has rather reversed the historic part, because he rose to bless the Government, and in the most important part of his speech, to some of us, he made use of very keen and trenchant criticism as to the methods of martial law. Therefore, I am sure, even people who do not agree understand the point of view of those of us who are anxious, as far as possible, to restore civil jurisdiction in these matters, and to limit, so far as is consistent with public safety, the operation of martial law. The Attorney-General to-day, with transparent clearness, gave at greater length the argument which he gave the other day in introducing this Bill. I think we may reasonably conclude that if we find the same argument used twice by my right hon. Friend, and no other argument, that that exhausts his treasury of reasons on this particular matter. His one argument was that there might be difficulty in ascertaining whether a person of foreign appearance, and none too English a name, was or was not an alien enemy or an alien friendly or neutral. I think the Committee would admit that that argument, so far as it goes, is not only true, but legitimate; but does it go far enough to justify the Government in depriving the subjects of allied and 680 neutral States of that protection of the ordinary Civil law of this country which they have hitherto enjoyed, and which now we are most grateful to the Government for restoring, at any rate to some extent, to His Majesty's subjects themselves? Of course, in discussing this Amendment—in discussing, in fact, any Amendment to a Bill of this kind—it is quite impossible to empty the mind completely of consideration of other Amendments which appear on the same point. There are Amendments on the Paper which, if adopted by the Government, would give power to the Government to have such persons tried, not necessarily by a jury, but by a special commission, and what I think many of us in this House desire, and apparently some very eminent legal authorities elsewhere, is that the Civil law should be generally interpreted by men whose lives have been given to the work in Courts presided over by men who are the leading authorities on criminal procedure.
What we want is that these methods, to which Englishmen attach so much importance, and to which I, for one, believe friendly nations attach importance as regards their subjects in this Realm, should be restored to friendly aliens at this time. After all, what does it matter if occasionally there may be some preliminary difficulties in ascertaining whether a person is an alien enemy or an alien friend? It may involve some slight delay or some particular inquiry, but, as this person would certainly not be at liberty, his presumed evil actions could not be continued or repeated, and what is the value of the difference between a few days' delay to ascertain that and depriving the subject of an ally or of a neutral nation with whom we are on terms of amity of those particular judicial methods and rights for which England has been the envy of other nations? Therefore I urge upon the Government and my right hon. Friend to reconsider this refusal. I cannot agree with my hon. Friend that this privilege ought to be extended to enemy aliens. The reason for that I am sure he will quite understand when he remembers that during this War the alien enemy in this country is only too apt to be an enemy in every sense of the word, and therefore there ought to be a dividing line, between those who owe allegiance to our enemies and those who do not. I submit that there is ground for putting the subjects of States at War with us under martial law 681 which does not apply either to British subjects or the subjects of friendly or neutral States. I am sure that my right hon. Friend has considered every aspect of this question, but I hope he will not consider it unreasonable for us to press upon him the international aspect of this matter. There never was a time when it was more necessary for us to show both to our Allies and to neutral States the friendly sentiments we entertain towards them, and our willingness to treat their subjects as we would treat our own. I urge the Government to accept this Amendment if only with a view to adopting other Amendments which would give the right and choice to a man to ask for a court-martial. In view of other Amendments which might restrict what we are now asking for, we should be very grateful for any concession in this direction.
§ Lord ROBERT CECIL
I cannot quite agree with the attitude taken up on these questions by the hon. Member for Middleton (Sir Ryland Adkins) and I confess that my sympathies are more with the hon. Member for the Bridgeton Division (Mr. MacCallum Scott). I agree that the real alternative in this matter is British subjects or everybody. I cannot help feeling great repugnance at any attempt to establish two forms of justice, even as an emergency measure, that is a higher form for a British subject and a lower form for alien enemies. It is not a question of coming back to Civil tribunals or anything of that kind, but it is the distinction of having these two forms of justice at the same time which is rather objectionable to me. I agree with the Attorney-General that you have just as good a chance of obtaining justice from a Military Court as from a jury, but if that is so what is the reason for this proposal? It is thought that this Amendment would be some concession to the view that a British judge and jury is, on the whole and on the balance, a better tribunal for the administration of criminal justice to civilians than a Military Court. The hon. Member who has just spoken holds that view. The conception is that an alien enemy is an enemy altogether, and is not entitled to the same degree of justice.
§ Sir R. ADKINS
When you are dealing with an alien enemy measures appropriate 682 to war are more defensible than when you are dealing with persons in a state of complete peace in this country.
§ Lord ROBERT CECIL
Does the hon. Member think they are more just in the one case than in the other?
§ Lord ROBERT CECIL
I think it is even more objectionable to submit the subject of a friendly or a neutral State to a less satisfactory form of trial. I do not wish to say anything derogatory regarding Military Courts. I agree with the Attorney-General who said, with great force, that you may have considerable difficulty in proving that a man is a British subject, and you may easily have a mis-trial. If you do have such distinctions as these you ought to be quite sure whether the man is the subject of a friendly State or not, because it may turn out that he is not, and the proceedings would be void altogether. There would be great difficulties and delays, and I am not quite sure that those difficulties will not arise, even when you come to the British subjects. It will not be quite so easy to prove that a man is or is not a British subject. The British Empire is enormous and contains many nationalities, and history furnishes us with a celebrated international case of a man who was a British subject whom nobody would ever guess to be a British subject, either by his appearance or his language. I think you will have those difficulties under the compromise which has been suggested, and the only way to avoid them is to make the rule apply to everybody—enemy and alien. I quite understand the difficulty of this, and such a change would undoubtedly be open to considerable animadversion and some would be shocked at the suggestion that you were going to allow alien enemies at this juncture to be tried by a Civilian Court. I can well understand that there might be circumstances where it would be wrong to do so, and I hope the Government will not weaken that Clause of the Bill. If you are going to have for different parts of the country not subject to military emergency any relaxation of the existing Act, I am not convinced of the wisdom of that policy. If you do go so far, I am inclined to think that the proper course is not this Amendment which we are discussing but the one which the hon. Member for the Bridgeton Division has referred 683 to, namely, the extension of this right to all persons who come before the Criminal Court.
§ Mr. DENMAN
The case for this Amendment has been put so clearly by the Mover and Seconder that it is not necessary for me to pursue the matter, and I wish to traverse only one or two observations made by the Attorney-General. The right hon. Gentleman has spoken in a manner which is distinctly novel from the Front Ministerial Bench. We have hitherto been assured most solemnly that all alien enemies are known and registered. The country at the present moment is sharply divided into registered alien enemies and those who are not, and it is amazing to hear that the practical difficulty lies in administering that distinction rather than in administering the quite new distinction between British subjects and the members of a neutral State. I want to enforce the observations made by the Noble Lord who spoke last. It is extraordinary to hear that a British subject is so easily recognised when you see him. You get people with Teutonic names who are citizens of Canada or Australia, and it would take them a long time to establish the fact that they are British subjects. I want to urge that having divided the country into sheep and goats the Government should adhere to that distinction. They really cannot come down here and tell us "we have become experts in distinguishing between sheep and sheep," and to ask us to distinguish between sheep and goats is too high an intellectual effort for us. The distinction is there already, and the Amendment we are suggesting will continue that distinction in existence. Surely there is this safeguard, that the onus of proof must rest with the claimant. When a man is tried he is told that he is entitled to come before a jury or a Military Court provided he can prove under the Amendment that he is a British subject, and so long as he cannot prove that he remains in custody. What, therefore, is the danger? It seems to me the fact that the onus of proof rests with the claimant is a complete safeguard against throwers of bombs, who seem to frighten the hon. and learned Member opposite.
§ Mr. DENMAN
I must have misinterpreted the observations of the hon. and learned Member opposite. I thought he argued in favour of a trial by a Military 684 Court giving some particular immunity from the risk of bombs. That is how I understood his argument. I appeal to the Government that while they are extending rights in this way let them do it generously, and give the rights not only to our own subjects, but to the neutrals and to Allied persons who are in this country.
§ Mr. BUTCHER
Equally from sentimental reasons I was anxious to extend this privilege to members of the States who are Allies with us, but after hearing the Attorney-General I am converted to the view the Government holds that this is a privilege which ought to be granted simply and solely to British subjects. To do otherwise would be both undesirable and inconvenient. The justification of this Bill, as I conceive it, is not that trial by court-martial is less just than trial by jury, but that trial before a Civil Court by a jury is, and has been for a great many years, an essentially British right, and is a right which should not be suspended until a strong case of necessity arises. This trial by jury, however, is not a right which extends all over the world, and is not a right which many of our foreign friends and enemies are in the habit of getting. Therefore, I say that to my mind the justification for this Bill is not that you are doing better justice by giving them a right to go before a jury instead of going before a court-martial, but that you are giving them a right, if they choose to exercise it, of claiming trial by jury. My Noble Friend, to my considerable astonishment, seemed to think that this British right of going before a jury should be extended not only to our alien friends, and not only to the subjects of States who are fighting with us, but also to alien enemies. For the first time almost in my recollection, I did not follow his logic. He seemed to have an underlying idea that courts-martial are not as good instruments for this purpose. If that is his meaning, I take issue with him, and I say that in cases of popular excitement which must necessarily arise courts-martial will administer at least as good justice as, and in many cases better justice than, a jury necessarily prejudiced or influenced by motives and excitement.
§ Mr. BUTCHER
I have already explained that. I say, "Give to those British subjects who choose it the right to have that form of trial which is essentially British," 685 and I confine myself to that reason. Unless my Noble Friend is prepared to assert that you cannot get justice for anybody by court-martial, the whole foundation of his argument falls to the ground.
§ Mr. THOMAS RICHARDSON
I very much regret that I did not hear the speech of the Attorney-General, but from such discussion as I have heard I gather that he dealt at some length with the point raised by the Amendment now before the Committee. When the hon. and learned Gentleman who has just sat down uses the word "privilege" with such insistence, I think we are entitled to remind the Committee that those who are supporting the Amendment do not ask for privileges, but appeal to the Government to restore a right to the citizens of this country which they have enjoyed for upwards of 600 years.
§ Sir J. SIMON
I certainly call it a right and not a privilege, and the people and citizens of this country get that right under this Bill.
§ Mr. RICHARDSON
The right hon. Gentleman is not in the habit of being impetuous, and if he had allowed me to finish I was just proceeding to say that even foreigners had enjoyed the same right as British subjects. For a very large number of years not only British subjects, but also foreigners resident in this country have enjoyed not the privilege, but the right to be tried by Civil Courts under similar conditions and in similar emergencies as obtain at the present time. We ask the Government to restore that right. The Government have felt themselves under the necessity of bringing in this Amending Bill primarily for the purpose of restoring a right that was taken away when the Act was passed under emergency conditions in the early stages of the War. Personally, whilst I should desire the Bill to be more comprehensive and inclusive than the terms of the Amendment which embraces our Allies and subjects of neutral States, I think the suggested compromise is reasonable and just. I sincerely hope that the Government will appreciate the point that we are not asking for privileges or favours. We ask that the rights we enjoyed prior to the War breaking out shall be restored not only to British subjects, but to subjects of our Allies and neutral States, and that they will at least make an honest attempt to 686 maintain the traditions of this country so far as the administration of civil justice is concerned.
§ Mr. MACMASTER
The discussion has ranged over two points—first, as to the form of trial, and secondly, as to who shall enjoy one form or the other. There is great force in the fact that trial by jury has been the established system in this country not merely for British subjects, but for aliens and even alien enemies. There was a departure from that in the Act which we are now seeking to amend. It is now proposed not only that the right of trial by jury should be restored to British subjects, but that it should also be restored to neutrals, and especially to our Allies. When the Defence of the Realm Act was under discussion, I ventured to say that I saw no objection to the extension of the right to alien enemies. There could be, as was pointed out then and as has been well pointed out to-day, no injury to the public interest in allowing the extension to alien enemies, because if an alien enemy chooses to accept trial by jury he goes before a tribunal which, in all probability, is more unfavourable to him than a court-martial.
Consequently, I see no difficulty whatever from the point of view of the public interest in making a complete restoration of the right of trial by jury in this country, or, at all events, as an exception to the Act which is now on the Statute Book to giving the option to anybody who wishes it to be tried by a jury. If you do that, you have the law as it is now constituted in the Act of Parliament, and you restore the right to anybody who claims it, to be tried by a jury. You give the double opportunity. I attach, from the point of view of public policy, very considerable weight to the suggestion that neutral and friendly countries will be a good deal concerned if we only make restoration to our own people. If there is anything in which foreign nations have confidence, it is in the British sense of justice, and I believe that if we retain this special privilege for our own people only, we shall be withdrawing something which not only we ourselves regard as of great material value to ourselves, but which all foreign nations have looked upon with respect. I believe it would be wise, though I do not attempt to suggest anything in the nature of advice, if this measure were to receive further consideration, because the fuller consideration it receives the more we must feel the importance of restoring the full 687 right of trial by jury or, at all events, of giving the option to everybody to be tried by jury who wishes it.
§ Mr. WALTER ROCH
I must confess that as regards this Amendment I have been convinced by the Attorney-General and the Noble Lord the Member for Hitchin (Lord It. Cecil) that there are practical difficulties in the way of it, and that the right thing as a matter of policy would be that all should be tried in the way prescribed. I feel some difficulty, because I understand that the Amendment which I have down to give effect to it, unless this Amendment is withdrawn, will not be in order. On the question of the general merits of this applying to all or none, I think the argument of the Attorney-General proved too much. I understood his argument was that he did not think an alien enemy should be tried in this way, because he would not get a fair trial before a jury. What would happen to an Englishman or a British citizen who was called up before a jury for this offence? He would be less likely to get justice than an alien enemy, for surely what would be repulsive to a jury in an alien enemy would be more repulsive still in a citizen of their own country. There was a point raised with regard to spies. We all feel, war being what it is, that spies should have a summary trial, but so far as I understand the law, and so far as I am told by people more experienced than myself, with the Defence of the Realm Act or not, a spy can still be tried by court-martial. He can be dealt with in the most summary way. Those who are in favour of this general civil trial by jury must not be accused of making any attack upon courts-martial. I know nothing about them, but the whole experience of courts-martial has been devoted to the discussion and the administration of military law which is well and clearly defined. Although the offences provided for in the Act are of the vaguest nature, they require most careful consideration, and surely there is nothing more likely to secure that than legal training. If legal training is to be treated as of any value at all, then why say that courts-martial conducted by officers of military experience are best able to deal with these cases? The Attorney-General seemed to assume that it was trial by jury, and that only, which we are seeking to get for everybody 688 in this Clause. I agree that trial by jury is one of the most precious things of which we desire to obtain the restoration, but it is not only trial by jury we ask for We are asking for the whole of the safeguards which are associated with the procedure of our Civil Courts in connection with the taking and sifting of evidence. I should like to quote some words by Lord Chief Justice Cockburn on this point. The learned judge, charging a grand jury, said:—Those safeguards which are of the essence of justice, which have been found by experience to be necessary to prevent the rash conclusions and hasty judgments which men experienced in the administration of justice are at times liable to form—to prevent, what sometimes happens, innocence from being confounded with guilt, on appearances which a more thorough and patient investigation would be placed in a different light—safeguards more especially required in times of excitement and passion, when the minds of men are more apt to be led astray.The Attorney-General spoke about rapidity in connection with these proceedings, but it is just that reasonable delay which our criminal procedure affords that is one of its most valuable characteristics. I say nothing against the ability or fairness of courts-martial. But I would point out that they have not none of these safeguards—they have not the safeguard of delay or of the presentation of a definite charge, or of the examination of witnesses, so that the accused may know exactly what he has to meet. And it is in order-to avoid very hasty trials in times of excitement that I hope these time-honoured safeguards, which have come down to us through many years, in our Courts will be restored to all alike.
§ Mr. HARRY LAWSON
It seems to me that there is a good deal more sound than substance about this Debate. What we are concerned with to-day is not the theory of the constitution, but the practice of the Executive Government and its Courts under the exceptional circumstances of this terrible War. When the Lord Chief Justice uttered the words quoted by the last speaker, Great Britain was not at war, and it is the practical and not the theoretical considerations which—
§ Mr. LAWSON
It was after the insurrection in Jamaica. In any case, there is all the difference between a petty revolt in a West Indian colony and the condition of things in Europe now. One 689 cannot imagine that the Attorney-General would have taken the stand he has on this point if he had not been guided largely by the opinions of those Executive Departments which are most concerned. It is quite evident he spoke here with the approval—I do not say by the direction, for that is an offensive term—but with the approval of the Council of War and of the Lords of the Admiralty, and these are the people who can judge best what are the dangers of pressing an Amendment of this kind. I say the issue raised is theoretical rather than practical, because hon. Members opposite have tumbled over one another in stating that the administration of justice in courts-martial is every bit as fair, and probably more likely to favour the prisoner than in civil tribunals. There is not one who has alleged that justice would not be done by a court-martial.
I have been very much impressed by the argument of the hon. and learned Member for North-East Cork (Mr. T. M. llealy). In Ireland, of all places, he says, not only has justice been scrupulously fair in courts-martial, but, if anything, those brought up on charges before that tribunal have had more favour shown them probably than they would have had under ordinary tribunals. Considering what the history of Ireland has been, and considering also what the feeling has been in regard to Irish juries, that is a very remarkable confession. May I point out to the House that, whilst we are labouring to support the theory, the chief practical provision of the Defence of the Realm Act is left untouched in the main Clause which really interferes with the liberty of the subject. Habeas Corpus is suspended; anybody can be arrested without warrant; anybody may be locked up and detained, I think, indefinitely, at the will of the Executive Government. Therefore, a small point is this, except from the view of theory, which has been raised at considerable length this afternoon. I do not say that I am in love with the present condition of things, but I take it that these safeguards are to be retained because it is the opinion of the Executive Departments of the Government concerned that they ought to be retained, and I am quite content to accept their judgment as set forth here by the Attorney-General. I do not think that, merely to satisfy our theoretical objections, we ought to accept an Amendment of this kind. It is quite evident that the greatest criminals and worst enemies 690 of this country would be favoured by the Amendment brought forward by the hon. Gentleman opposite, because the most dangerous spies, as the Attoney-General pointed out, the most insidious of our enemies, are not likely to proclaim their enemy nationality. We know from what has passed that the most dangerous men have been those who have claimed the nationality and domicile of some neutral country. I am quite sure that no case can be brought before the House which warrants us in acting in a sense and spirit which is contrary to that which the necessities of the country demand, as they are interpreted by those who know best, and to whom we are trusting at this moment for our protection.
§ Sir W. BYLES
I cannot follow the argument of the hon. Member who last spoke and who seems to think that it is a safeguard for the nation that any advantage which comes from the Civil Courts should be denied to those who offend against our law. I was not in the least surprised that the Noble Lord the Member for Hitchin (Lord Robert Cecil) should stand up for the traditions of liberty and justice of which we are so-proud, as I have heard him do it many time before; but I am astonished that lawyers in different parts of the House should be found to defend courts-martial as against Civil Courts, and I was especially astonished that the hon. and learned Member for North-East Cork (Mr. T. M. Healy) should have ranged himself on that side. I should have thought that he at any rate knew enough of the interference with the ordinary course of civil justice in his own country in past years to-be very jealous of its being aggravated in the case of anybody.
§ Sir W. BYLES
I believe it was a very eminent man who said that court-martial law was no law at all, but that it was the abrogation of the ordinary law, and, if that be so, the less we have to do with it the better. The Civil Court, at any rate, is a court of justice. All I ask is that offenders against our laws should be tried by the Civil Courts, and I am entirely unconvinced by the arguments of the Attorney-General, who, not only in this Debate, but on several previous occasions, has said that it is a great thing to uphold the traditions of law, justice,, and freedom, of which we in this country 691 are so proud. What is the great tradition of which this country is proud? It is the tradition of justice—justice not only to our own subjects, but justice to all, British or foreign alike. It has been a blow to my faith in that British spirit and that British tradition to find Members of this House—hon. and learned Members—defending the rules, procedure, and decisions of courts-martial. I would not have been surprised to hear Service men say that, in a crisis such as now exists, that in exceptional circumstances you must hurry a prisoner before a colonel and give him quick punishment, whether it be justice or not. But for lawyers to take up that attitude has been not only a discouragement to me, but a revelation of the mistiness of mind to which those learned men appear to be subject.
§ 5.0 P.M.
§ Mr. DUKE
I am going to support the Government on this occasion, whether I incur the censure of the last speaker or not. It is, no doubt, desirable that Englishmen should have the regard which their forefathers have had for the administration of justice, but our sensitiveness regarding the administration of justice must be tempered, in time of emergency, by a quality quite as important and sometimes paramount—the quality of common-sense. We have to deal with cases in which this country is being attacked from within by persons who are utterly unscrupulous and not possessed of those fine considerations which have been so admirably expressed from both sides of this House—people who are as unscrupulous in civil life as they are in regard to the usages of war. We have to protect the State itself; we have to protect the lives and property of our countrymen from the inroads—the secret inroads—of these men, against whom at any moment it may be necessary to take action as alien enemies, and you have to try them by court-martial, as was done in the case of the spy Lody. He was not tried in the manner he was by virtue of any legal right he possessed. I do not think there can be any doubt that Lody was tried by virtue of absolute right of the Crown of this country, in time of war, to deal with the life of an alien enemy found engaged in the hostilities in this country. That is the principle upon which Lody was tried, and I am very glad to have had an opportunity of stating it, and to have the assent of the Attorney-General and of my hon. and learned Friends on this side who have considered this matter. 692 It does afford us certain safeguards, and I believe it is the fact that the fate of Lody, who was tried before a court-martial, has acted as a deterrent across the Atlantic and has saved us from imminent perils, especially espionage and observations of the movements of our Fleet, and matters of that kind. Lody's life was well sacrificed in the cause of his country. He suffered justly. Public interest, common sense and natural courage requires that if that danger exists in the case of others than Lody, as to whom it is not within the constitutional power of the Crown to deal as it dealt with Lody, the constitutional power of the Crown—acting in these days when the Crown and the people are one people and community and there is no diversity of interest between them—ought to be extended. As in the case of Lody, the Crown should be enabled to put a man upon trial for his life before a court-martial in respect of an offence aimed at the life of this State, or in the case of enemies or of people who masquerade cither under certificates of foreign naturalisation, or under forged passports, or under any of those elaborate means by which enemies conceal themselves in our midst and, with education, resource and infinite ingenuity, are able to worm themselves into the secrets of the land and so do mischief. If there are neutral enemies, if there are also foreign enemies who are guilty of practices of that kind, and if it means that every power of the fighting Departments of the State is required for the purpose of defending us against people of that kind, we ought cheerfully to give it. I deal with this matter upon the ground of emergency.
When the Act was introduced and passed I did not like the suspension of the modes of trial to which we have been accustomed. I like it little now, but I like it a great deal better than the prospect of being exposed, even for a day, to the horrors and atrocities which are waiting for us if they can be inflicted upon us by unscrupulous enemies who have neither decency or chivalry, and who use every kind of agent for attacking us. Therefore, when the Government came down last autumn and said it was necessary to have this Act, the House of Commons, in common with our fellow-subjects, said that if there were grounds in the opinion of the responsible Executive of the country for putting a man upon his trial he should be put upon his trial and, if need be, should be put upon 693 trial before a court-martial. It was a disagreeable necessity, but we do not owe it to His Majesty's Government: we owe it to a foreign potentate. It was a measure of defence against foreign mischief. I acceded readily, cheerfully, not with a desire for the deprivation, but with a sense of its necessity, to the proposal made last year which is embodied in the Act.
What did the original Act provide? First, for the preventing of communication of all persons in this country with the enemy for the purpose of communicating information to them. That was its first essential. It provided that anybody who was charged with espionage might, under regulations issued by the Government, be put upon his trial by court-martial. The Government now come here, after a considerable lapse of time, and say, "It is true that that has given a shock to the sensitive minds of many men who are jealous of the reputation of British justice, and that at the moment it can be relaxed, but the time, may come when it cannot." God forbid that the time which is referred to here should come, but it is a possible time. If there were a landing of any hostile party in the Humber, the Thames, or on the South Coast at any point, the intelligence and ingenuity of the spies who are latent in this country now would be directed to action at that spot from every quarter of the land. They would communicate by wireless, by pigeons, or by personal message, and what safeguard would the community have? It is suggested that if the troops or the police find a miscreant engaged in practices of that kind, redhanded, and find him with full proofs of guilt upon him, they are to take him before a magistrate, and the matter is to run the leisured course of investigation before a magistrate, and ultimately of investigation before a judge, when the time of Assize comes, or when you could send down a Commission.
I respectfully submit to the Committee that it is trifling with a danger to put us into a position where, in a time of emergency, if there be the event to which the Amending Bill refers, of a hostile invasion, or of hostilities actually within our own shores, we should be left only with the ordinary resources of civil justice before it can be possible to take and put an end to a person who was manifestly guilty of the grossest crime against civilisation, which espionage is, and that you should have your machinery of magis- 694 trates and judges and a Court of Criminal Appeal, and all the while expose your fellow countrymen to the original risk of the presence and activity in this country of the particular spy who might be under arrest and of his accomplices, who everybody knows to be present in the land now, although they cannot be found. I do not desire the restriction of any man's liberty. So far as I am concerned, I am ready to take my chance at a court-martial. People must avoid risks of this kind. They are much less likely to run the risk of being tried by court-martial than to run the risk of trial before a judge. As His Majesty's Government think we can relax that part of the Act at this time, I shall support them. I am not ready to vote for an Amendment which puts the country at the mercy of a man claiming United States nationality, Dutch nationality, or foreign nationality of one kind or another which is not enemy nationality, while he raises the various points which are involved in the trial of the question of nationality, and ultimately comes to leisurely trial in respect of a matter about which he will never be brought in question, because you bring in questions of democratic administration and not of military or regal administration in the old absolute sense. In the public interest and for these reasons I support His Majesty's Government.
§ Sir J. SIMON
I hope the Committee will excuse me for just stating how the matter stands. I want to point out to the Committee, since some Members of it have come in since the Debate began, what is the application, as it seems to me, of the very powerful speech to which we have just listened. There are two ways in which we might deal with this matter, but the Amendment does not suggest either of them. It is possible to deal with the matter by saying we will confer the right to claim trial by jury upon everybody who is charged with an offence under these regulations. In that, event no question of nationality arises. It is a perfectly intelligible proposition, but it is one which the Government would be bound at this time to resist, in view of the information which is in their possession. The only other alternative is the alternative provided in the Bill of saying that we will confer the option upon British subjects. The Amendment says neither the one thing nor the other. It says that we shrink from the logical alternative of conferring the right upon everybody, so we will confer it upon everybody so long as he 695 is not a subject of an enemy State. That raises practical difficulties which cannot be got over. We cannot get over the difficulty which is presented if that question has to be solved in the case of a man who is obviously a foreigner and is suspected by the authorities of being the subject of an enemy State, but who persists in saying that he has the nationality of one of the neutral States. That question might take weeks, months, and even years to answer. It is perfectly impossible that we should accept as an improvement of this Bill something which is not one of the two logical alternatives, the real truth being that the Committee generally would resist including at this time the subject of a hostile State in this Section; consequently we are left with the Bill as it stands.
§ Mr. BOOTH
I want to ask one or two practical questions, and I hope that therein I shall have the approval of the hon. Member for Mile End (Mr. Harry Lawson), who thought the Debate was far too theoretical. I would ask for information, quite frankly, as to the position of women in this question, and the position of Belgian friends—particularly Belgian soldiers. I mention women as being important, because the most dangerous spies in this country are women. You have alien women belonging to hostile nationalities with which we are at war at the railway stations meeting the refugee soldiers from the front and picking up news in order to transfer it to our enemies. For the Committee simply to consider the male sex misses very largely the principle point that is troubling me. The second point in regard to which women are in an exceptional position is that the woman's nationality follows that of the husband, and if he chooses to change his nationality, as some of them are doing by applying to the French or Belgian Governments, or to some neutral Government, the woman changes her nationality whether she likes it or not. You are not dealing solely with strangers, but with the position of British women who may find they have lost their rights before our Courts, and who may be charged in some cases because of the foreign names of their husbands, particularly if they marry one with a Flemish name. Although they are British women and have always lived here, yet they will be denied the right of trial by jury. As time goes on we shall particularly have to be on our guard against women spies, and it is possible that British women who have 696 married subjects of Allied Powers will find themselves in considerable difficulties in Court. I am not saying that the Government are not right in the matter. If the right hon. Gentleman can satisfy me on this point, as he did in his speech on the other Bill, I trust he will enable me to come to a proper decision.
The second point I wish to raise is in connection with the Belgians in this country. You have at the present moment 18,000 wounded Belgian soldiers here. By the hundred they are being certified as unfit to take any further part in the War. It is estimated that there are several thousands of them whom the doctors have forbidden to take part in the War. They have a pension of 14s. a week from the Belgian authorities. They are going through the length and breadth of the land and dispersing themselves among the population. Every English woman who marries one of them will be in the position of losing her right to trial by jury. What is our attitude to the men? They have no country of their own; they were driven out of Belgium by these German ruffians and were fighting on the border. When they were wounded they could not be taken into Belgium and must go into France or England in order to receive hospital treatment. They are in an extraordinary position.
Can we say to these people, who fought side by side with our men in the trenches, when they have sought, after being wounded and incapacitated from further fighting, an asylum in this country, if they are charged, owing to a Flemish name, with some crime, that they cannot go to trial in the same way as an Englishman can? It may be that we shall have to do it. I only want to know if the point has been considered, because occasionally there is such a thing as a miscarriage of justice. I believe those occasions are very rare, but even with the highest precautions it occasionally happens. If a single case of that kind occurs it might be an international question, and we have an answer if we say we run the same risk. It is possible to have a miscarriage of justice with regard to a jury, but we are liable to it as well, and this is a time of exceptional emergency. If we can give that answer it is a good one, but otherwise if they make a complaint against the tribunal we must say, "Had you been British you would have had a jury trial, but we could not give it you because you are a Belgian." I make these observations, not because I 697 am antagonistic to the Government, but only in order that I may receive some assurance.
§ Mr. HOGGE
The speech of the hon. and learned Gentleman (Mr. Duke), to which the Attorney-General referred as a powerful contribution to the Debate, seemed to me to be a very fine example of his well-known power of addressing a jury, because he omitted a Sub-section of this important Bill which would cover the picture le drew of invasion of this country at any point of the coast. Sub-section (5) says that:—
"In the event of invasion or other special emergency arising out of the present War, His Majesty may, by Proclamation, forthwith suspend the operation of this Section."
So that if the circumstances did arise which my hon. and learned Friend contemplated, he would have at his disposal the precise powers in favour of which he was speaking, and it seemed to me that it was quite unfair on his part in addressing the jury of the House of Commons to leave out that very essential point. I find myself in a very confused state of mind, after having listened to every speech that has been made upon this subject. The hon. Member (Mr. Harry Lawson), for example, laid great stress upon the argument which had been brought forward earlier in the Debate by the hon. and learned Gentleman (Mr. T. M. Healy) who controverted some of the arguments used by my hon. Friend (Mr. MacCallum Scott). I cannot quite understand the logic of his position. My hon. Friend suggested that trial by jury was not likely to be accepted by anyone who was arrested under these circumstances, and that they would prefer a court-martial. With that view the hon. and learned Gentleman (Mr. T. M. Healy) agreed, and thought a court-martial was far and away a better tribunal. But he went on to point out that before a court-martial those people were likely to get much greater leniency than they would get from a jury, and he prefaced all his remarks by saying that what we wanted was liberty from spies and liberty from men who would blow up bridges, and yet his argument was reduced to this, that he would prefer that these men should be tried before the tribunal which would be most lenient to them. Having taken up that position the hon. Member (Mr. Harry Lawson) says, "that is a splendid argument that impresses 698 me vastly, and that is why I am in favour of it." That leaves me in a confusion.
I am also surprised at the position taken up by the Attorney-General. I can understand his position when he says the Government do not agree to anything but what is set out in the Bill. I am prepared to accept the Bill for this reason, that at present none of us are free men. But this Amending Bill makes us free men for four days if we will commit a crime, and that being so, it is a four days' restoration of liberty to the British subject of which he has been deprived. But I think the Attorney-General is a little hard on those of us who are prepared to support this middle course. I do not know what the practice is, but this is a question which is troubling me, as to a neutral subject arrested under the Defence of the Realm Act belonging to a neutral State not in any sense at war with us, and is court-martialled. Suppose he is a Dutchman, or a Swede, or a Norwegian; suppose he is not one of the clever men to whom the hon. and learned Gentleman (Mr. Duke) referred; suppose he is a man who does not understand the language and the customs of the country pretty well, is that prisoner put in touch at once with the consul or ambassador who represents his country? Do they know that a subject of their country—a neutral country—is in that position, and are they able to come to his rescue and get him out of his difficulty? After all, this Bill applies to persons who are not subject to military or naval law. The punishment of the offence may be death, and in the case of a subject of a neutral State which is quite friendly with us, that man might go to his death or to severe punishment without the Consul or the representative of his country knowing anything about it. If I were assured that in all these cases a representative of his country would be placed at his disposal to help him in his difficulties, I am not sure that I would not agree to the Bill as it stands. But I hope the Attorney-General can give us some information on that point.
§ Mr. T. M. HEALY
The hon. Member has pointed out an apparent want of logic in my remarks, and I should like to defend my position. We are dealing with foreigners. They have no business to be here, primâ facie, in time of war. This is our country; it is not their country.
§ Mr. HEALY
When the French Government makes a protest against the action of the British Government with regard to this Bill, I will consider that point. We know the difference between a tribunal consisting of a court-martial and a tribunal with a jury, but the foreigners who come here do not. We know, at least we think they get just as much justice, and perhaps more, before a court-martial. They do not. The Act is held in terrorem. That is the effect of the Act. We want to create in the minds of the alien enemy the effect that we have ample power to deal with them and to deal with them summarily. That is why the Government have brought in this Bill. It is held in terrorem over evildoers. I do not care about the logic of the thing one bit, and perhaps, if the hon. Member opposite travelled to London by sea instead of by the convenient method of the London and North-Western or Great Northern Railway, he would appreciate the beauties of the Bill much better. I cross the sea every week, and sometimes twice and three times a week, and I know that the steps the Government are taking are just, proper, and necessary. I do not support them from any love of the Government. I suppose I have opposed them as often as any other Member of this House. But we know this War is being forced upon us. We have not drawn the sword. The sword has been drawn against us under the most cruel and abominable circumstances in regard to which war was ever declared by any merciless, savage, and fiendish Government. The Government are only taking the ordinary, natural, necessary steps which every man of sense would take. They are acting as our trustees in this matter. They are the trustees in this State of Great Britain and Ireland. We have our own lives and our own liberties to protect. We have not to protect those of foreigners. Let the German Kaiser protect them. We here have to protect ourselves. The Government are only taking the only really necessary and proper steps, and I heartily congratulate them upon the action they are taking.
§ Mr. OUTHWAITE
The hon. and learned Gentleman has told the House that he made his speech because he thought his views represented those of the Government. The Attorney-General has told us that his sole reason for not accepting the Amendment is that he is unable to discriminate between two different classes, the alien enemy and the 700 neutral. But the hon. and learned Gentleman, representing, as he says, the views of the Government, says this Amendment is refused because we desire to hold a court-martial in terrorem over the alien enemy. He seems to me to be imbued thoroughly through and through with the spirit of Prussianism. He wants the rejection of this Amendment and the maintenance of the Bill as it stands, as a species of frightfulness. He is not much concerned with the maintenance of justice as with putting fear into the hearts of possible evildoers. That is the spirit of Prussianism and frightfulness. At the same time in his former speech he suggested that a court-martial is a superior Court and one where one is more likely to get justice than in a Civil Court. It has been a revelation to me, and I dare say to other lay Members, to find the estimation in which the Courts of justice are held by learned Gentlemen on the other side who practise before them. There can only be one object in the refusal of this Amendment. That must be that there is some disadvantage in not being able to apply for justice to the Civil Court. I see no-reason why, through the fear which seems to inform the mind of the hon. and learned Gentleman, we should deny that superior justice.
I think this Amending Bill would probably never have seen the light of day at all if it had not been discovered by a certain section of the Press, who are not in the first place concerned with the liberties of the subject, when this Bill was first introduced, that if they criticised the action of the Government they might become subject to this Bill and be tried by this very court-martial which some of them now allege is a superior form of justice. Probably if it had not been for that fact, we should not have had a certain amount of agitation for this reform. I myself am not so much concerned with the fate of the alien enemy or the neutral under the Bill as I am concerned in the desire to see maintained the great tradition of British justice. I believe there is something of importance beyond these shores in the maintenance of that tradition, because I believe nothing keeps up the attachment to the Mother Country among our fellow subjects beyond the sea than the sentiment that they are the inheritors of the great tradition of British justice. It seems to me that if we deny any individual in this community the right of access to the Courts we are only acting 701 through panic, fear, and vindictiveness. I do not wish to see this great tradition brought to the dust.
§ Mr. ELLIS DAVIES
The only offence that can be dealt with under the regulations is an offence committed by a spy. I wish to point out, before Ave come to a decision in the matter, that a spy can be dealt with under martial law, apart from these regulations, I quote a statement made by the Home Secretary on 9th October last:—The present position is, therefore, that espionage has been made by that a military offence triable by court-martial. If tried under the Defence Act the maximum punishment, under the Defence of the Realm Act—the maximum punishment is penal servitude for life, but if dealt with outside that Act as a war crime the punishment of death can be inflicted.It is obvious, therefore, that the punishment of death can be inflicted apart from the regulations.
§ Sir J. SIMON
There were one or two matters mentioned in the Debate to which I desire to reply. My hon. Friend the Member for East Edinburgh (Mr. Hogge) asked what was the practice if a man who, when arrested and charged with an offence under these regulations, claimed to be a neutral person coming from a neutral State. I cannot speak as to the general practice, but I have, two cases in my mind in which the claim to be a neutral has arisen. In both cases a communication was instantly sent to the diplomatic representative of the neutral country, and in both cases it turned out that the gentleman was repudiated as a subject of the neutral State. The hon. Member for Pon-tefract raised another point which seemed to me a good point. He pointed out that a woman, a British subject, who married a foreigner automatically became of foreign nationality. It do not think there will be any difficulty in detecting a case in which a woman who was a British subject became a foreigner in that way. I am agreeable to answer the appeal that was made to me on the matter by making an Amendment on Sub-section (6) to provide that a woman who is a British subject and who marries a foreigner shall have her interests protected. That is a perfectly proper addition to make to the Clause. I hope that the Committee will pass on to the consideration of the other Amendments on the Paper.
§ Question, "That the words 'being a British subject' stand part of the Clause," put, and agreed to.702
§ Mr. BUTCHER
I beg to move, after the words "British subject," to insert the words "not owing any allegiance to any foreign State."
The object of this Amendment is to prevent a foreigner who has become naturalised here, but has not divested himself of his foreign nationality, from having the rights of a British subject. We know that there are, unfortunately, in this country a very large number of German subjects who became naturalised and had to take the oath of allegiance in this country, but who still retain their German nationality, and have therefore a double nationality. I say that, persons in that position cannot be British subjects under this Bill. The object of the Bill is to give a distinctly British right to British subjects. You have British subjects of the particular type I have referred to. Our laws in some respects are peculiar. Foreigners can ask to be naturalised, and we do not demand that they should give up their allegiance to the foreign State. In Germany, the law is this: A man cannot divest himself of his German nationality except by an order. Germans come over here, and they do not bother about divesting themselves of their nationality.
Let me remark, in passing, that that is not the way Germans treat us, because when a British subject wants to get naturalised in Germany, he has to go through certain preliminary steps in order to get rid of his. British nationality, and until he has got rid of it he cannot become a naturalised German subject. One hears-it sometimes said that naturalised aliens are really British subjects to all intents and purposes. That is really a positive mis-statement. There is an important respect in which a naturalised alien is not a British subject. If a German subject, has got naturalised here, and has not divested himself of his German nationality, and if he goes back to the country of his origin, he ceases to be a British subject. There is yet another case in which a German, or other person; naturalised here is not a British subject. Under the Act of Settlement passed at the end of the seventeenth century, a naturalised alien was not allowed to fill certain important offices. He was not allowed to be a Privy Councillor or a Member of this House, or to hold any post either in the civil or military government of the country. I think I am right 703 in saying that until the other day—until the Act of 1914 was passed—that disability on naturalised aliens was never removed.
§ Mr. BUTCHER
Probably they have, and I think that they have probably been wrongly elected. No doubt there have been cases where they have been Members of this House, but perhaps the Attorney-General will tell me if I am wrong. Let me put this—if the Act of Settlement was not repealed until 1914 why was it necessary to repeal it under the Act of 1914? Therefore I say that until the passing of the Act of 1914 naturalised persons could not be Privy Councillors or Members of Parliament. It may be said that the Act of 1914 puts all that right. But that is not so. I was informed the other day that the Home Secretary is not giving certificates of naturalisation under the Act of 1914 to any person who has a dual nationality. Therefore I say that a person with this dual nationality is an incomplete British subject. He is incomplete in two respects, because he is under the disabilities of the Act of Settlement, and because, if he goes back to his own country, he ceases to be a British subject. Therefore I say that an incomplete person of that sort should not be able to claim the right of trial by jury.
§ Sir J. SIMON
The difficult case which the hon. and learned Gentleman has referred to is a proper one to be raised, but I submit we shall best serve the interests of the country here if we make our rules simple. I think if we qualify the definition in the way proposed by the hon. and learned Gentleman we will not get the advantages which he intends. It is true that a man from one point of view may be a British subject and from another point of view a subject of another State.
§ Sir J. SIMON
I think we had better defer the consideration of that. The point having been raised, it will be borne in mind in administering the Statute.
§ Mr. HEALY
May I suggest to the light hon. Gentleman that there is a case which has a bearing on this subject? I was astonished to see a large number, I think I may say hundreds, applying for 704 naturalisation in Canada. The judge said that as a matter of law he had no discretion, and that he was bound by the Canadian Statute. The Home Secretary takes very good care to see what are a man's antecedents when he applies for naturalisation. That is one of the dangers that we have to encounter, and while I do not for a moment quarrel with the decision of the Government, as regards the hon. and learned Gentleman's Amendment I do think that at a subsequent stage we ought to consider whether this Bill should extend to persons who have not obtained their naturalisation before last August, having regard to the difference in method of naturalisation here and in the Colonies.
§ Amendment, by leave, withdrawn.
§ Sir R. ADKINS
I beg to move to leave out from the word "be"["Act. 1914, he shall be"] to the word "tried"["to be tried by a Civil Court "].
This Amendment will have, if adopted, the effect of making the Clause run, that—
"Where a person being a British subject"—
and so on—
"is alleged to be guilty of an offence against any regulations made under the Defence of the Realm Consolidation Act, 1914, he shall be tried by Civil Court with a jury, instead of being tried by court-martial."
Taking that view the effect of the Amendment would be to make the trial by jury in the case of British subjects automatic. I would ask my right hon. Friend to view this Amendment with sympathy. It does not largely alter what may be anticipated to be the result of this Bill, but it does put it far more in accord with that regular supremacy of the Civil Court which is surely welcomed, recognised, and approved of by Members in all parts of this House. We are now dealing with a Bill which is confined strictly to British subjects. That the Committee has already decided. We are dealing with a position in which the Government—and I desire to thank them most heartily for doing it—are prepared to restore the right of trial by jury to any British subject charged under this Act.
Surely we can be certain that my right hon. Friend and his colleagues would not have brought in this Bill in the form in which it is unless they were quite convinced that there was no danger to the public if the option which they give were 705 exercised in every case. They would not give any option unless they were of opinion that that option could be used by everybody concerned without danger to the State. Therefore it is surely fair to conclude that the Government contemplate that everyone who under the Bill has the right to select a jury may do so. If that be the case why should anybody be put to the trouble or inconvenience of having formally to elect to be tried by a Civil tribunal? Why should not the rule be that they should have the Civil tribunal to which this country has for centuries been accustomed? If the Amendments were adopted by the Committee, it would still be in order, I submit, to move that a person included in the Bill might ask to be tried by court-martial, if the person so charged saw the aspects of court-martial as they have been put in the earlier part of this Debate. And it would still be in order, as I take it, to move that it might be a Civil Court with a jury or a special commission. In other words, if the Government would agree to make the trial by Civil tribunal the rule, then these exceptions, both as to the character of the Civil tribunal and as to the persons accused having the privilege of selecting a court-martial as an alternative, either or both of them, could be embodied if the Committee so decided or the Government wished.
Therefore I hope that my right hon. Friend, if he thinks it important to retain trial by court-martial, will do it in the form of an option specific to that, and not provide that the accused person will have to select an ordinary civil authority of the country, as if that were the exceptional tribunal. We want the common procedure in courts of law in this country to be the rule and martial law to be the exception asked for by the person accused. It is in order to do that that this Amendment has been placed on the Paper. I move it, hoping that the Government will give the concession embodied in this Bill the fullest and clearest form by saying that there shall be a right to be tried by a jury, and, if they wish to have the alternative of a court-martial, that they should put that as the alternative to be asked for by the person so charged. I dare say that in the long run the result may not be very great, but I do feel that the acceptance of the Amendment would meet the feelings of large sections of the public in this country, because you would thereby put the Civil Courts where they ought to be, in the 706 position of being the regular and natural method, and you would treat as an exception that form of procedure which is exceptional, and which we are all agreed ought not to be put in the Statute except in relation to exceptional circumstances.
§ Sir J. SIMON
I have been listening to my hon. and learned Friend, and I am not quite certain whether what he proposes is only a change of substance or a change of form. Part of his speech would make me think that it was a change of substance; but I am not certain whether he is suggesting anything more than that he would prefer to have it laid down that trial by jury should be the rule and trial by court-martial be the exception, which would have to be asked for by the accused, instead of having it stated in the reverse terms of the Bill. Is that the extent of his proposal?
§ Sir R. ADKINS
I personally would like to see this Bill read so that there should be trial by jury or judges in every case. I only want to point out to my right hon. Friend that, if the Government for reasons of State are obliged to oppose that proposal, I would welcome the change which my right hon. Friend calls a change in form for the reasons which I have already tried to explain.
§ Sir J. SIMON
Let me deal with it in that way. Of course one form may be better than another, but it does appear to me that there are some advantages in expressing the matter as it is expressed in the Bill as it stands. I sympathise to the full with my hon. Friend and others who protest that the system which will remain for the time being under this Bill is exceptional and abnormal. Certainly it is, and I have no sympathy with people who treat the right to be tried by a jury as a thing of no consequence. But surely we had very much better express our Bill in a form which shows that we realise that we are living in exceptional times, and that we realise that the sooner that we can get out of those exceptional times, and back to the old traditional system, the better.
If you want to amend the Defence of the Realm Act, it seems to me that the right way to do it is to remember that here is an Act of Parliament which sets up not martial law but courts-martial, staffed by military officers, in order to investigate and punish offences against certain regulations. That is the thing Ave start with. When we are making some amendment of that, surely the right thing to do 707 is not to rewrite the whole thing, and go back on it, but to keep the principle as it was, and then say that it is subject to this, that in the ease of a British subject he may claim the right to be tried even now by a jury. I suggest therefore that, so far as form is concerned, the form in which the Bill stands is the right one. I do not think the Bill is anything the worse, because anyone who looks at it will see that it is dealing with an exceptional emergency, and therefore it is the plain interest of those who care for the British tradition to object as soon as the national emergency permits. The thing would then become a matter of substance.
If there is to be any court-martial at all, then I cannot agree with my hon. and learned Friend, and, while I am quite anxious to confer on British subjects the right to be tried by a jury if they please, possibly you are not helping them if you insist that in every case they should be exposed to that investigation, especially when you see that many of those regulations deal with matters which are necessarily the subject of a certain amount of local interest. Surely you cannot be doing an injury to a British subject in a time of crisis if you say that he is to have a choice; and I do not understand how it can be necessary in the interests of British citizens to deny people their choice, and to insist that they should have one and not have the right to the other. Therefore I hope that my hon. and learned Friend will not press this point. If the matter is one of form it seems to be right as it is. Where the matter is one of substance it is one in which I regret that I cannot make any change.
§ Amendment negatived.
§ Mr. ELLIS DAVIES
I beg to move, after the word "entitled," to insert the words "within forty-eight hours of his arrest to have the nature of the offence with which he is charged communicated to him in writing and."
The object of this Amendment is that the accused person should within forty-eight hours of his arrest have specifically put to him in writing the nature of the offence with which he is charged Further down on the Paper the Attorney-General has an Amendment in which he proposes to insert the words, "written notices given to him of." But what I want to put in is a provision which will define the time within which the charge must be 708 communicated to the accused. At the present moment, as I understand the law which governs courts-martial, there is no provision in any Statute which provides the time within which the accused must be charged. The only authority I can find on the point among the Law Books in the Library is rather ancient. Clode, on Military Law, at page 114, says:—
"The articles of 1742 require the order for arrest to be in writing, and those of 1748 that the crime with which the prisoner was charged should be stated. So the law stood until 1755, when the articles were altered by making it optional for the committing officer to state the charge at the same time 'without unnecessary delay.'"
Apparently the position to-day is this: The military officer, where the prisoner is charged, is under no statutory obligation to define the charge which will ultimately be made against the civilian. I am anxious to press that point on the Committee. We are not merely dealing with soldiers who are subject to military law, but with British citizens who are civilians. They may be arrested, and a charge may be brought against them, and apparently there is no power to compel the officer to formulate the nature of the offence which is alleged against them. I referred the other day on the Second Reading of the Bill to a case reported in the papers a few months ago in which a British citizen was arrested and held in custody under this Bill without any offence being charged against him. Ultimately he appealed to the High Court for a writ of Habeas Corpus, but the Civil Court refused to interfere on the ground that the man was in military custody, and that is the position in which any civilian may find himself within the next few months. I think it is essential that the charge, where the man has to choose whether he will be tried by court-martial or a Civil Court, should be intimated within a reasonable time. My suggestion is that forty-eight hours is a reasonable time in which the authorities should define the charge ultimately to be preferred against the person accused.
§ Sir J. SIMON
The hon. Gentleman's point is a different point from that which I am trying to make by the Amendment which I have put on the Paper. I should like the House to realise the extent to which the Government propose to make the machinery of this Clause more certain 709 and precise. In the Debate on the Second Reading it was pointed out that it was not precise enough, and I think the criticism was well-founded. When we come to it, I shall propose, first, not only that the nature of the charge shall be communicated to the person accused, but that it shall be done in writing, and, secondly, at the same time that he is told the general nature of the charge, he shall be told, also in writing, that he has the right to claim under this Section trial by a judge and jury. Those two points will be meet by my proposals. But this is a different point. I do not say that it is an unimportant point, but it is not a point, I regret Lo say, which I think can be dealt with in this way. It is in the Executive's interest to see that the charge is formulated with promptitude, because the time within which the accused has to make choice of the tribunal before which he desires to be tried must run from the time that the charge is so formulated in writing, and they could not even begin to make arrangements for the trial, gathering together witnesses and dealing with other matters, until after that interval had elapsed; so that it is absolutely necessary that we, should not act unreasonably about the matter.
I can conceive a case in which formulating in writing the general nature of the charge might not be able to be done within forty-eight hours. Nothing is more undesirable than that you should have several separate accusations in different forms, in order that you may be sure that you have caught the man effectually. It is quite easy to accuse people of crime, but it is very undesirable that they could accuse him in writing of anything other than the thing which they really have satisfied themselves they can prove. If anybody takes the regulations, which of course are numerous and complicated, he will find there an illustration that a little time to inquire is needed, in justice to both sides, in order to show what is the regulation that has been really infringed. I understood my hon. Friend to say that in no circumstances could complaint be made to a Civil Court if there were unreasonable delay. I should be very slow to accept that proposition. If a British subject is arrested, in connection with the Defence of the Realm Act, and an unreasonable time elapsed before he was told what was the charge against him, it would take a great deal of argument to convince me that he would not be able to move for a writ of 710 Habeas Corpus to hear the charge made against him, or alternatively for his release. I may say, in view of that fact, that this Bill now makes additionally responsible the administration of the law with which I am concerned—I mean the administration of the civil law—and I can assure my hon. Friend, in most specific terms, that the greatest care will be taken to formulate the charge in the least possible time, so that there may not be any undue delay. There are many cases in which it ought to be done in two or three hours, and the inconvenience of inserting this sort of limitation is that there is always a tendency in a Department, if they have got a limited time, to exhaust that limit of time. I hope the Committee on this and other points will rely on the good sense and the interest of those who have to formulate the charge to do so as rapidly as possible.
§ Mr. POLLOCK
I have some sympathy with the view contained in the Amendment, because I think I appreciate the object which the Mover has in mind; at the same time, I think the answer of the learned Attorney-General is both adequate and sufficient to prevent the Committee from adopting the proposal. No doubt its object is to try and safeguard any person's right that he should know why he is being detained at the very earliest possible moment. But one has also to consider that this Act is for the purpose of safeguarding the interests of the public, and it is quite conceivable that the Attorney-General and those under him may have to proceed against persons who may be guilty. One has got, therefore, to consider not merely the innocence of the person arrested, but also his guilt, and from that point of view the Executive would, if they had to formulate the charge within forty-eight hours, in order to be quite certain that they would convict the person guilty, have to be ready to formulate it in precisely the right terms to him.
That is not a very easy thing to do, and you might have an ingenious man able to take every possible point, while, at the same time, it might be quite essential for the safety of the public that he should be properly brought to trial. Supposing the charge were formulated, it might be formulated as the Attorney-General said, probably in three or four different ways, and the accused would be handed three or four pieces of paper, which would puzzle him exceedingly. But if that was not 711 done, and the charge were formulated within forty-eight hours in the simplest possible form, and if that charge was not sufficiently adequate and the person was released, he could be immediately rearrested outside the place where he had been incarcerated, and, within another forty-eight hours, another charge could be formulated.
§ Mr. ELLIS DAVIES
If a summons or a warrant is served upon a person it contains the specific charge which is to be made, and the nature of the offence.
§ Mr. POLLOCK
I am not forgetting that, but it is known that if a summons is not perfect, or there is necessity for bringing a fresh charge, a fresh summons can be issued. You are really not safeguarding the rights of innocent persons by putting what may be a very ineffective time limit upon the Executive Government. There is really at the bottom of the mind of some hon. Members, as to the proceedings to be taken under this Bill, a confusion of martial law with military law. What we are dealing with under the Bill is a system under which military law will be as always, administered by Military Courts, just as justly and just as perfectly as other law is administered by other Courts. We are amending the Defence of the Realm Act, and it is worth while to remember that what we are dealing with is merely a few Sections of the Defence of the Realm Act. It is worth while to remember that in the first three lines are these words:—
"His Majesty in Council shall have power during the continuance of the present War."
All we are dealing with, therefore, is governed by that period of time, and I suggest to the Mover of this Amendment that, looking at the rights both of the person who is arrested and the duty of those who have to enforce the law during the continuance of the present War, the right thing would be to withdraw this Amendment as unnecessary.
Mr. MacCALLUM SCOTT
I will now raise a point I intended raising later on the Amendment of which the Attorney-General has given notice. It is a point which is relevant to this Amendment, and my right hon. Friend has himself made reference to his own Amendment, and I think it might be dealt with now. It is 712 a question of interpretation, and I am certainly not going to set myself against the Attorney-General in the interpretation of any Act of Parliament or Bill. I am rather seeking his help in the matter. The Amendment which he has on the Paper will read, "Within four days from the time when written notice is given of the general nature of the charge, and of the nature of his rights under this Section." The Bill gives the option to the accused person of being tried by a Civil Court, and that option is contingent upon its being exercised within four days of a certain time, and that time, in accordance with the Attorney-General's Amendment, would be the time when the written notice was given to him of the general nature of the charge made. The rights under this Section are contingent upon such notice being given to the accused person. On a point of interpretation, I wish to ask, Do the words of the Bill, in their present form or in their form to be amended by the Attorney-General, make it mandatory that this notice shall be given? I take it that at present they do not make it mandatory or imperative, and if this notice is not given the proceedings will not be invalidated, and, to deprive any person of the option given by the Bill, all that it would be necessary to do would be not to give him notice.
Then he would have no right to exercise the option. It is relevant to the Amendment we are now discussing which makes it imperative that notice should be given within forty-eight hours. I accept fully the statement of the Attorney-General that there are conceivable cases when it might not be possible in very difficult and delicate cases of this kind to give that notice within forty-eight hours, and, indeed, within any very limited space of time. I would suggest, provided the Attorney-General agrees in my interpretation, that words should be introduced making it mandatory, and that those words should be placed at the end of the Section in a form such as this: "Written notice, of the general nature of the charge and the nature of his rights under that Section shall be given to the accused person as soon as possible after his arrest."
§ Mr. HARRY LAWSON
There are two points which I referred to on the Second Reading of the Bill, and I am not quite satisfied that what I wished to see indicated will be so attained by the Amendment which stands in the name of the Attorney-General. I understand that the 713 whole of the subject is being debated on this Amendment because it covers the same point.
§ The CHAIRMAN
I think it will be rather difficult to separate the points since they are so closely allied, but I suggest that we should not have the Debate a second time.
§ Mr. LAWSON
I speak avowedly in the interests of the profession to which I am proud to belong, as they are particularly liable to prosecution under this Bill. Of course, journalists are liable under separate Sections much more than other men. As, for instance, on the charge of circulating false intelligence and spreading false reports, or communicating naval or military secrets, or taking steps detrimental to recruiting. Under all those Rules end Orders that have been made by way of regulations journalists are particularly liable to prosecution. I want to ensure that they will have proper notice given to them of the nature of the charge which is brought against them, and of their right to be tried by a civil tribunal. The Attorney-General stated that the Committee rather confused military law and martial law, but I would point out to him that under the Rules and Orders, as he well knows, any person authorised for the purpose by a competent naval or military authority, as well as any police officer or other officer, in the discharge of his duties, may arrest without warrant, and so on. Those officers will have to state the charge and they will be very largely, or almost always, men unskilled and not learned in the law in any sense. The military or naval officer in stating the charge may unintentionally and bonâ fide make a mistake. I do not think the point is wholly met by the words which the Attorney-General proposes to introduce later on authorising him to put the charge in writing, so that the option, to take advantage of the Amendment we are now making, to claim to be tried before a civil tribunal shall be brought home.
Under the Summary Jurisdiction Act of 1879 words are laid down and they are, I believe, always put in Court to the accused by the magistrate before whom the charge is brought. The same procedure might not be followed here, but I want the right hon. Gentleman to appreciate this point. The soldier, or officer, naval or military, or any of the other persons who have this exceptional power under die Defence of the Realm Act, might 714 not know how to put the point unless we give a form of words he could use for the purpose. I suggest that the Attorney-General, by way of regulation, if not in the Statute, might provide some definite form of words to be put into the hands of the naval or military officer who is so employed. I have seen them at work and I know the difficulty they have in finding appropriate words, because they are not so fluent as Members of this House either by word of mouth or on paper, and they cannot very often find the words they want. Therefore, it is perhaps our duty to give to them the formula they ought to employ. If it is impossible to do it now in the Statute, then perhaps the right hon. Gentleman will have it done by regulation.
§ Mr. LAWSON
I therefore leave that point. There is the other point which I mentioned. Besides the formula being definitely laid down to be used by persons ignorant of the law in discharge of the duty, I also want to make sure that the communication is made by an authorized officer. I do not think that that is laid down by the Attorney-General's Amendment, though he may say it is implied. It is all very well if you are dealing with the ordinary Courts; then there will be no difficulty and the normal procedure will be followed. But we are avowedly dealing with emergency cases, and under those circumstances you cannot be too precise in settling the machinery as well as the form of words to be used. The people who will be most grateful will be the officers employed in this duty. If, under the regulations, precise words are given the naval or military officer always does use the formula he finds in the book and far more closely than lawyers under similar circumstances. I do not feel that the words of the Attorney-General carry out the intention in that respect I ask him to assure us that by way of regulation, if not now, that that procedure will be closely laid down so that it can be followed, and so that the rights of the subject, whom we are protecting under this Clause, should be fully established. If any other means equally satisfactory can be suggested, of course I should not wish to press the point. I do think it is most important, now that we are clearing the matter up, that it should be done in a way which is perfectly definite and easily understood by those who are subject to the law, as well as by those who administer it.
§ Mr. J. M. HENDERSON
I think the right hon. Gentleman must make some concession here. The Amendment which he proposes amounts to this: A man may commit some offence unwittingly, and he would be in gaol day after day, with no notion of what he is really charged with. I will give an instance. On 24th November, a Scottish skipper had the misfortune in coming into Hull to run against a submarine. It was a misty morning. The owners of the ship at once admitted their liability to pay for the damage, but the naval commander took the skipper and lodged him in gaol and the whole of the crew. They were kept there from the 24th November until somewhere about the 10th December. No charge was preferred against them. The owners of the vessel offered to allow another vessel to take the crew on so as to save the expense of keeping them in Hull, but the skipper was kept in gaol and the whole of the crew were held, and in the end they did not launch an action against the man under the Defence of the Realm Act, but under the ordinary Merchant Shipping Act for negligence of navigation. That is the sort of thing which is likely to occur. Inter arma silent leges is all very well, but there should be some period within which a man should be informed of the charge which is to be preferred against him, to prevent him being kept there for possibly months without knowing what he is charged with.
In this case I have mentioned they thought, I suppose, this Scottish skipper was a German, as perhaps the commander did not understand his Scottish accent. I cannot conceive any other reason why they should have kept this wretched man ten or twelve days in gaol. An hon. Friend here tells me that a habeas corpus does not run in the case of the Naval Courts, at which the Attorney-General seems to be surprised. It is, however, the fact, according to my hon. Friend, and I would therefore ask him to put in some period, or limit of time, within which a charge ought to be preferred. Without any maliec prepense a man might be subjected to being kept in gaol without knowing with what he is charged, and then find himself involved merely in a civil procedure in connection with an offence which he unwittingly committed. I would suggest forty-eight hours, or fifty-six hours, or that in some way or other, the remedy of a limit of time should be afforded.
§ Mr. HEALY
I would be very glad if the Government would make some con- 716 cession on this point. I rather doubt the view which the hon. Gentleman who moved this Amendment has given us with regard to habeas corpus. I do not think any Court could refuse to grant habeas corpus merely on account of the fact that a man is in military custody. In Wolfe Tone's case, Wolfe Tone on board a French invading ship was taken. He was tried by court-martial and sentenced, but nevertheless the Civil Court granted a habeas corpus as against the decision of the court-martial. I am certainly alarmed if the condition of the law is as stated by my hon. Friend, namely, that a man who has been guilty merely of a civil wrong can be held in the way suggested. Anything, of course, is possible, if a man will not exercise his rights. As to the case of the Scottish skipper, I should really think he still had his remedy. I think he could have gone to the Court and got a habeas corpus, and I am not sine that even to-day he has not the right of taking an action for false imprisonment. I do not think that, the Defence of the-Realm Act has quite the sweeping effect which is suggested. I do think that when a man is arrested a charge ought to be formulated against him. We are dealing now only with British subjects as this Act is limited to them, and I think it is the right of every British subject to have a charge formulated against him in a reasonable time.
§ Mr. DUKE
It seems to me that the hon. Member for Glasgow (Mr. MacCallum Scott) did point out a difficulty in the proposed sequence of events. I do not think myself it is a difficulty which is intentionally raised by the draftsman of the Bill, or that it need in any way present any formidable impediment to amendment which will secure the object of the Government, and which will lay down the express provision that before a man is tried, and with a proper interval before his time of trial comes on, he shall be given this notice which will enable him to decide what course he will take in respect of his trial. The hon. Member for Glasgow pointed out that, although the intention of the Clause seems to be very clear, namely, that the man shall have notice before his trial, the Clause does not say he shall. If he were tried by court-martial and subjected to the extreme sentence which is mentioned here, it would be a little too late to investigate the irregularity of the proceedings subsequently. 717 So, if I may, I would suggest that the Attorney-General should make the Amendment proposed by him to the effect that written notice shall be given to the alleged offender of the general nature of the charge, and of the nature of his rights under the Section, and also add at the end of the Sub-section a provision that such written notice shall be given to the person charged not less than five days before the commencement of his trial—five or six days, or whatever is the proper period—a sufficient period to enable him to take the necessary steps. I suggest that there should be a peremptory provision that the notice shall be a condition precedent to the trial for such a period as will enable the accused to avail himself of his rights.
§ Mr. ELLIS DAVIES
If I may interrupt the hon. and learned Member, the object of my Amendment is that the charge should be made within a certain limited time so that a man cannot be held in custody without full notice of the charge impending against him. I want to ensure that no man shall be held in custody except for a limited time, and that during that limited time he shall have full notice of the accusation against him.
§ Mr. DUKE
I quite understood that the hon. Member had in his mind that summary substitute for habeas corpus. I take 1he view of my hon. and learned Friend (Mr. Healy) that habeas corpus applies in these cases, and if the Executive tell us that in this emergency legislation they regard it as important that you should not interpose this kind of provision. I accept the statement; but I say that you can go some distance in the direction in which I understand the hon. Member desires to go, and the whole way desired by the hon. Member for Glasgow, by inserting a peremptory provision that no man shall be brought to trial except after the lapse of a sufficient period after the communication to him of the nature of the charge and the nature of his rights to enable him to exercise those rights.
§ Sir R. ADKINS
I think the hon. and learned Member has really been speaking on a somewhat different point, although a very important one, from that of the Amendment. Does not the Committee desire, speaking generally, three things? The first is that anyone charged under this Section shall be made aware of the precise nature of the charge as soon as possible after he is taken into custody. The 718 second is the important point raised by the hon. Member for Mile End (Mr. Law-son) that, when he is told what the charge is to be, he should be told in clear and stereotyped language what the alternatives are, and that that should be provided, if not in the Bill itself, in the regulations. I suggest that the Attorney-General should give us the draft of that provision before the Report stage, so that there may be no misunderstanding. The third point is that the communication as to the nature of the charge should be made a reasonable time before the day of trial, in order that the accused may be able to exercise his option. I hope the Attorney-General will see his way to meet all three points. I quite agree that forty-eight hours may in some cases be too short, a period. Whatever view may be taken—and there is a difference of view—as to the applicability of habeas corpus under these circumstances, there can be no doubt that among the few people who would be charged under this measure some would not be aware of what they could do under the Habeas Corpus Act, and possibly could not afford it, and might, in practice, lie in prison for many days without knowing exactly why they were put there. This has happened in other cases, according to my information. If the Attorney-General cannot accept forty-eight hours, would he put in the words "a week"? That would be far better than an indefinite period. Surely any charge under this Statute could be formulated within a week! That would ensure that no man under this legislation would be an a worse position than a man under the ordinary law, who today is remanded for not more than eight days.
§ Sir J. SIMON
I am going to make a suggestion. I do not think that to draft a provision by interchange of suggestion is always a very good or precise process. But the Committee has fully before them the different points, and it appears to me that they can be met quite well in a manner satisfactory to everybody. Taking the actual Amendment first, I cannot agree to forty-eight hours; but I do not see any reason why we should not put in the Bill that the notice is to be given as soon as possible after arrest. In nineteen cases out of twenty that would probably be less than forty-eight hours.
§ Sir J. SIMON
At any rate, I must make my suggestion. As to the point that we must be sure that notice of these rights is effectively served upon a British subject before he is tried by court-martial, that can be met by a form of words. The third point was that whatever notice was given ought to be in writing, and the fourth, that it is desirable that the form in which the accused is notified of his rights, should be, not an impromptu form, but a carefully formulated document. It seems to me that these points will be met if we leave Subsection (1) as it is, and insert the following Sub-section:—
"Before the trial of any person to whom this Section applies, and as soon as possible after his arrest, the general nature of the charge shall be communicated to him in writing, and notice in writing shall at the same time be given, in a form provided by regulation under the said Act, of his rights under this Section."
As the Committee will understand, there is already a provision about the four clear days in the body of the Sub-section, and what I have suggested we might add would be a way—I do not say the only way, or even the best way, but a way—of meeting the four points which have been raised. I am sorry I cannot agree to forty-eight hours as the period within which the accused shall be told what the charge is, because I can conceive cases—I trust they will be rare—in which longer time would be required. A very useful purpose has been served by my hon. Friends in calling attention to the fact that there have been delays. Certainly I shall not fail at once to call attention to that allegation. The Committee may be satisfied that everything shall be done to make the procedure under this new Statute as prompt as is consistent with efficiency.
§ Mr. LAWSON
Would it be advisable to lay down by whom the charge ought to be reduced to writing, and by whom the question ought to be put?
§ Sir J. SIMON
We cannot do it by the Court. To tell the truth, that is the way in which the provision was first drafted. The analogy which occurs to the hon. Gentleman is the one that occurred to me. It was provided that when the court-martial was assembled, the president of the Court was to say, in the form of words that we proposed to set out, "You have a right to claim to be tried by a jury." But this 720 criticism arose—that you have assembled your court-martial, you have gone through all the preliminary business, and then you are liable at the last moment to be told that a court-martial is rejected. I think that if we leave it to regulations we shall be able sufficiently to indicate how it is to done. I hope the Committee will think that what I have suggested is sufficient.
§ Sir R. ADKINS
Would the Attorney-General consider the question of inserting a definite period, such as a week, if forty-eight hours is not possible? Also, would he would allow the House to see the draft regulations before the Report stage?
§ Sir E. CARSON
I think the Attorney-General has tried, as well as possible, to meet the difficulties which have been raised in the discussion. I quite agree with him that it would be impossible to insert a limit of time within which the charge should be formulated. We are dealing with a very difficult set of circumstances, where it may be necessary, if you are going to give any effect at all to your action, to arrest a person very speedily in order to avoid mischief. In that case it may be that at the very start your evidence is very shadowy. It may be a very important matter, and you may have to arrest somebody on very shadowy evidence. You will then have to inquire into the evidence which, as it stands, would not be sufficient to sustain a charge made in proper form. You may get on the track of evidence which may take a considerable time to examine, and if you were pressed in the early stages, before you had really sifted the evidence, you might draw up a charge which would not be the full charge or the accurate charge as eventually presented. Therefore, I think, the Attorney-General has adopted the right course in making it incumbent upon those who are charged with the administration of this law to frame the charge at the earliest possible moment, and I hope the Committee will not ask him to go any further. I should like to put this point to the Attorney-General. Suppose you have stated your charge in form and given it to the accused person, if you subsequently find evidence justifying a more serious charge and you wish to prefer that charge, will you be prohibited from so doing by the fact that you have previously given the other notice? I hope you will not.
§ Sir J. SIMON
No; but when a further or more serious charge is mentioned, the accused has a further option with regard to a jury.
§ Sir E. CARSON
He must have the option on any charge. That I understood. But the fact that you may have to amend your charge by reason of further evidence being adduced, shows the necessity of not limiting yourself to forty-eight hours or any other period. As far as I am concerned, I am quite satisfied with the suggestion of the Attorney-General.
§ Sir PHIPSON BEALE
There is one observation I wanted to make, and that is that it is no use putting a duty into an Act of Parliament that this or the other should be done in a given time without having some consequences if such a duty is not done. People will not do it merely because it is printed in an Act of Parliament, ft is no use putting in a definite time in the hope that it will be convenient, unless is is made inconvenient if the time be not adhered to. I think it should be quite sufficient for all practical purposes to say that the charge should be formulated as soon as practicable, but I do suggest putting in that the thing should be done in a limited time is no use unless you put some definite consequences for not doing it.
§ Mr. POLLOCK
I think the last speaker might be reassured, if he will take the trouble to note decisions under the Summary Jurisdiction Act, that there he will find that where provisions are made, such as the Attorney-General intends here in regard to the four days, that it has been held that compliance with these regulations will be a condition precedent to the jurisdiction of the Court to try the offence. I rise to make one appeal to the Attorney-General, and to the Committee too. It is that instead of being content to pass this question over to some regulations which have to be hereafter framed, the Committee will give themselves the trouble to see that this question, or a form of words, is actually put into the Act itself. I speak from the practical point of view. If you have an Act of Parliament which provides that this question shall be put, you must have with you your regulations, and it is a very tiresome thing indeed to find the regulations; unless you have a copy of both you cannot know what your complete duty is under the Act. The reason for putting this question in the regulations instead of in the Schedule of the Act, or 722 in some Clause of the Act, is only that it has not yet been drafted. It cannot be put before the Committee this evening, but it can be drafted, either in the form of a Clause, or for the Schedule, before the Report stage. I do really ask the Attorney-General to put the question into the Act itself, and not allow us to pass what is slipshod legislation merely for the sake of getting rid of the trouble of attending to the matter either to-night or on the Report stage. I urge this in the interests of those who have to administer the Act, who will want to have a compendium of their duty immediately before them, and who will find it very awkward at times to find the regulations, if they are not to be found within the four corners of the Act, but are hereafter to be promulgated.
§ Mr. ELLIS DAVIES
I am obliged to the right hon. Gentleman the Attorney-General for meeting us so far. I hope that before the Bill is considered on Report stage he will further consider the question of giving a time limit. I am quite aware of the remedy under habeas corpus, but we ought to realise the difficulty the poor man has for making application for that. Not only that, but I have already drawn the attention of the Committee to the fact that there have been occasions under this very regulation, where the Civil Courts for some reason or another—
§ Mr. ELLIS DAVIES
In the "Times" newspaper two or three months ago. I remember the case very well, and have no doubt about it. The Civil Court refused to make the order. Under the circumstances, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
Mr. TYSON WILSON
I beg in Subsection (1) to move to leave out the word "four" ["within four clear days"] in order to insert thereof "seven."
I do not think this Amendment will raise any great question, and I think most will agree with it. The reason why I move it is to give the man who is not a well-to-do man, or a learned man, the opportunity of having plenty of time to decide whether he would rather be tried by a Civil Court or by a court-martial. It is possible to imagine a case where four days is too short. For instance, a man 723 might belong to Plymouth and he might be arrested at Aberdeen for an offence under the Act. The evidence he might require would have either to be taken in Plymouth or the witnesses brought to Aberdeen before his legal adviser—if he had got one — could decide whether he should be tried by court martial or by the Civil Court. I submit that so far as the trial of prisoners arrested under this Bill is concerned that it does not matter very much to the prosecutor whether the number of days is four or seven in which the prisoner has to make up his mind as to the course he will adopt for trial.
Another point arises in connection with this matter. That is that only a short time ago a man was arrested under the Defence of the Realm Act, imprisoned for three weeks, and then brought up for trial. It was found that the prosecution had been taken under the wrong Section. I am not quite certain whether or not he was put back into prison, but the charge was amended. Eventually he was dismissed—without a stain upon his character. I suppose. Would a prisoner charged like this man be entitled to another four days' grace to make up his mind as to which Court he would be tried in? It certainly seems to me that a man, and particularly a poor man, should have the opportunity of consulting a solicitor. It is quite conceivable—I do not suggest any difficulty in getting a legal adviser in any part of the United Kingdom—that it might be difficult for a man to get at once that legal advice to which he is entitled to enable him to decide whether he shall be tried by a Civil Court or by court-martial.
I hope that the Attorney-General will give favourable consideration to my Amendment. I have not moved it with the object of giving prisoners who ought to be convicted the opportunity of getting off easily. As a matter of fact, I am rather inclined to think the time which would be granted under my Amendment would give the legal advisers of the Government the opportunity of making a better and a stronger case against a man than in the four days. At any rate, I do submit that four days is an extremely short time for a man charged with a serious offence to make up his mind as to which Court he would prefer to be tried by. We know some of the men likely to be tried have no very great knowledge of the English law. We know that very many of them could not even read intelligently an Act of Parlia- 724 ment if put before them. That being so, I think ample opportunity should be given for them to consult their friends, and their legal advisers, if they consider it necessary, and that no obstacles whatever should be placed in their way in deciding the position they should take up.
§ Sir J. SIMON
As my hon. Friend says, this question cannot possibly be regarded at all as a question of fundamental principle. The Constitution is not involved in the difference between four days and seven days. But I want to point out to my hon. Friend, and to the Committee, the reasons which brought the Government to the conclusion that four days was enough. You cannot judge unless you have really in mind what it is that the four days are for. The meaning of the Clause, of course, is not that the man will be tried in four days. On the contrary, in this Bill, whether it be four days or seven days, it is the period which must elapse before the authorities can begin to arrange for his trial. It is only after the end of that period, be it four days or seven days, that the authorities can know whether they must assemble a court-martial, which necessarily involves a series of military arrangements, or whether they must turn to the civil authorities and ask for a case to be prepared in order to be presented to a jury. Four days has nothing to do with the interval during which the accused person will prepare his defence. What it has to do is this, and nothing but this: Let us suppose that a man has already got written notice of the accusation which is made against him, and the written statement of his right to choose whether he will be tried by a jury or by court-martial. Is four clear days long enough for him to make up his mind? Really, I think it is! One would suppose that any man who had the slightest appreciation of the advantages of our Constitution would require, not four days, but scarcely four seconds! In the case of many people I have no doubt that that is so. I think my hon. Friend will see the point at once, because I am most anxious that we should agree about this.
The question of the days makes no difference from my point of view, but I would like my hon. Friend to consider the difference from the point of view of those who administer the law. If the authorities put their hands upon a suspected person, who perhaps had been long suspected, and, it may be, is indulging in a particular kind of practice which is known to be going on in different parts of the country, and 725 known to be—it may be—damaging and prejudicial to the safety of our transports taking soldiers across the sea every night, surely it is a matter of the most enormous public importance that we should not lightly argue as to whether seven is much the same as four, and so allow time to be unnecessarily wasted. I want to make it perfectly certain that the man knows what the charge against him is in writing, and that he knows in writing that he has an option. By all means let us inform him of that, not as the result of some casual communication, but as a deliberately settled form of words as clear as we can make them. Having done that, is it really unreasonable to say we will hold our hands for four clear days; we will not set up either one machinery or the other for four clear days, and you really must tell us in four clear days which it is you want, because national interests make it necessary that we should go on? It is because of that that it appears to us that really it is much better not to make this change. I quite agree with my hon. Friend that there is no great constitutional point involved, but we have got to look at this thing fairly, both in the interests of the accused and in the interests of the country. I ask the Committee to agree with me that four days is quite enough.
§ 7.0 P.M.
§ Mr. T. M. HEALY
I should like to point out that the Amendment is really prejudicial to the subject, because what would happen? If you put in seven days it gives the Government the power of keeping a man longer in custody without trial. The Government have practically by this Bill abrogated trial by court-martial, so far as British subjects are concerned, because they know very well that British subjects would naturally prefer a British jury. Accordingly, before they arrest a man, the Government would make up their mind that the man would ask for a jury and would bring him before a jury the next day. [An HON. MEMBER: "As soon as possible."] At all events, that is a possibility. The Attorney-General knows the character of the man, whether he is an enemy from Germany or anywhere else, and whether he is likely to claim a jury. He will not take the trouble even to think that the man is going to have a court-martial, and, accordingly, he will lay a charge against him and the man will be brought up at Bow Street, or somewhere else, the next day. I think that four days is better than seven.
§ Mr. HUME-WILLIAMS
I merely venture to appeal to the hon. Member who moved this Amendment, because the Bill does fulfil the purposes he has in mind. It is not a case of giving a man extra time to prepare his defence. When the man is taken into custody he has got with precision the charge made against him. He then knows exactly what he is to be tried for, and the four days is merely the time within which he is to exercise the option as to the tribunal before which he is to be tried. That gives him ample time to-obtain legal advice if he so chooses, and it gives him ample time to consider which is the appropriate tribunal from his point; of view; and, considering this is emergency legislation passed by us with a view to dealing out prompt justice to people who require it, four days is ample to enable him to exercise his option. I do not rise only to say that, because it has been much more clearly and ably said by the learned Attorney-General. But I do want to ask the right, hon. Gentleman a question which, I think, is material on this issue.
Supposing a man is taken into custody under the Act, and supposing the charge is one of gravity, and, therefore, takes a little time to formulate, is there any power to release him on bail during that time? May be it is a power that ought to be exercised with great caution; may be it is an application which would have small chance of success. But I do not think it is a power that ought to be taken away altogether, and I confess, having read this measure with some care, it is not clear to me whether once having been taken into custody the ordinary right a prisoner has for applying for bail would be exercisable or not. I am dealing with that period until he has exercised his option. I suppose from the time he has exercised his option and said he is going to the Civil Court, he has the remedies incident to such a trial. During the intervening period has he that right, or has he not? I suggest to the Attorney-General it is one a man should have, though I am not sure what chance of success such an application would have; but I do not think he should be deprived of it altogether. Perhaps the Attorney-General, before the Report stage, would be ready to consider that point.
§ Lord ROBERT CECIL
I am sorry the Government have not given way about this. I do not think it is a very important matter, and, of course, I should not think 727 of dividing at the present stage; but I should like to ask the right hon. Gentleman to consider whether there is any real reason wiry it should not be done, and, if there is not, I am sure he will agree that it is a good thing to concede such a matter, pressed in the way it has been pressed. He says we are passing an emergency measure, and we must consider the interests of the public. Of course, we all agree to that, but how far are the interests of the public involved? Supposing there is a case of a man interfering with transport, and day after day the crime may be recommitted. I quite agree the moment there is a suspicion of that I should be in favour of arresting such a man, and I should be quite content to allow the Government to exercise their own discretion in keeping him in prison under suspicion for a long period. I do not really very much agree with the argument put forward on the last Amendment, but once you have got the man under lock and key he cannot do any more harm; he is there.
The question is, is he to have four or seven days to decide whether to be tried by a jury or court-martial? It seems a very simple question, and so it would be to the man the Attorney-General has in mind, the astute and dangerous criminal. We have not the slightest sympathy with him, of course. But we have to consider the much rarer case of the poor man, the ill-educated man, arrested under suspicious circumstances, though in fact innocent. That is the only man I care about. I do not care at all about the man who is guilty, whether he is tried fairly or not. If guilty, that does not matter, ex hypothesi, in the least. The only reason you wish to treat him fairly is that somebody may be innocent, and you must have a rule so that the innocent may be fairly tried. Therefore, you have to consider the innocent man who has the appearance of guilt.
I quite agree that, personally, I should be disposed to think four days enough, but here are hon. Gentlemen—I do not always agree with their view—who do know the habit of mind of the poor man better than some of us. They say they do not think four days will always be enough for such a man as that to decide, and that he ought to have seven days to consider it. It is not a very great con-cession, and I cannot conceive what harm it is going to do. I do hope the Government 728 will not listen to some of my hon. Friends who seem to me to forget sometimes that the interest of this country is bound up quite as much in its reputation for justice, mercy and liberty as it is in any defence against one or two dangerous persons. Both things are absolutely essential for the safety of the country, and I hope that will not be forgotten in any quarter of the House. I hope the right hon. Gentleman will reconsider this matter; if not now, at all events before the Report, and concede it if he thinks, after reflection, it can be done with safety.
§ Sir R. ADKINS
I think a slight lengthening of this period would bring only good, and no harm would result. What is certain to happen is that there would be a tendency under this Act for the court-martial alternative to be suggested—I do not mean at all improperly, but quite fairly—by advisers to persons charged. It may happen in some cases where feeling is strongly excited that there may be ground for advising a person charged to select the court-martial alternative, but that is not an alternative a man is likely to choose unless it is represented to him by persons who know the state of public feeling better and come to him from outside. In view of that, and of the fact that a man's own natural advisers may be at the other end of the Island, I do hope my right hon. Friend will give more than four days—not necessarily seven—because I think there is greater danger of making it too short than too long.
Mr. TYSON WILSON
I understand the right hon. Gentleman is prepared to meet us to some extent in this matter, and, therefore, with the permission of the House, I will withdraw my Amendment.
§ Sir J. SIMON
What I am prepared to do is to take the figure of six. I do not myself think that the figure of four is the least bit too small. I do not, as a matter of my own judgment, regard the Bill in any respect wrong on this point, but it is important we should not only do right, but that we should give the impression we are doing right; it is not only important we should be fair, but that we should make the public realise we are trying to be fair. In that spirit I will agree, if the hon. Gentleman will be satisfied, that six shall be substituted for four.
§ Amendment, by leave, withdrawn.
§ Amendment made: In Sub-section (1), leave out the word "four" ["within four clear days from the time"], and insert instead thereof the word "six."—[Mr. Tyson Wilson.]
§ Mr. BUTCHER
I beg to move, in Subsection (1), after the word "martial" ["instead of being tried by court-martial"], to insert the words "or by a Special Commission under this Act."
Those words are necessary in view of a new Clause which I have put upon the Paper which empowers by Order in Council the establishment of a Special Commission under this Act as an alternative in certain cases. If that Clause were to be accepted it would be necessary to put in the proper words here to make provision for that new Clause. My object in moving this Amendment is to give the Government power by Order in Council, in cases where they think proper, to establish a Special Commission which would try these cases as an alternative, not to the Civil Court, but as an alternative to courts-martial. I propose that, not because I have any distrust whatsoever in the courts-martial: I propose it in the interests of the military authorities themselves, because I can see that at the present time the military authorities of this country have got as much as they can do, and more than they can do, in carrying out their proper business of training and preparing for war, and anything which diverts them from that paramount duty I think is unfortunate. I do not propose to abolish courts-martial altogether, because there must be cases in which a court-martial would be the only proper mode of trial; but there are a large number of eases for offences which arise under these regulations where, I think, it would be a pure waste of time to take officers away from their work and put them on courts-martial.
You want at least three or five officers for a court-martial, and it is not very easy to take them away from their own work. If this proposal is adopted you would have, first of all, the right of a British subject to claim an ordinary trial by a Civil Court and a jury. Minor offences would be tried by a Court of Summary Jurisdiction before a magistrate, and then you would have other cases coming before a court-martial. I think it would be found 730 that a large number of these cases could be dealt with by a Special Commission. I do not propose to define exactly how this Special Commission should be constituted, nor do I propose to suggest what cases should be sent to it, because I think those questions might very well be left to the responsibility of the Government. It would not, of course, be necessary to take three judges from the High Courts, because we have in this country a number of thoroughly trained lawyers already exercising judicial office outside the High Courts, such as Recorders and Chairmen of Quarter Sessions, who in many cases are extremely competent. Therefore it would be quite possible to get a strong tribunal capable of dealing with the cases arising under this Act. I urge the Government to take some account of the proper duties of the military authorities. I know men of high military rank who would be quite willing to carry out these duties, but I can well understand that they would rather be doing their own proper duties, which are so essential and urgently required just now, as anyone who heard the Prime Minister's speech yesterday would recognise, for the purpose of dealing with the great crisis. This should be done in the interests of the Army and the generals who are training those Armies for service. For these reasons I ask the Government to set up a Commission of this sort and thus set the time of these officers free for their more important duties.
§ The UNDER-SECRETARY of STATE for WAR (Mr. Tennant)
As the hon. and learned Gentleman has referred to me, I feel it ray duty to say a word or two on this subject. Although I am not a lawyer I understand that this alteration of the law is to restore to the British subject the right to be tried under any of the ordinary Courts of the land.
§ Mr. BUTCHER
British subjects are already given this right before the Civil Court and jury, but this proposal is an alternative to a court-martial for persons of this character—British subjects who do not elect to go before a jury and aliens and others who have not this right. It applies to everyone except those British subjects who wish to go before a jury.
§ Mr. TENNANT
Of course I cannot embark upon a legal controversy with my hon. and learned Friend; but I understand that this proposal will apply to British subjects.
§ Mr. TENNANT
This Clause deals with British subjects, and I understand only with British subjects. The legislation which the Attorney-General has introduced is to restore to British subjects the ordinary tribunals of this country. I do not think it would be in the general interest to give yet another option. We wish to give these people the rights of British subjects in the ordinary course, and that being so, I should deprecate any further extension, of which one knows nothing, which would be very difficult to define, and which would not command that amount of confidence which the general Courts of the land do command and have commanded. So far as I am concerned I would be inclined to suggest to my hon. and learned Friend that he should not press his Amendment.
§ Sir R. ADKINS
My right hon. Friend the Under-Secretary of State for War, doubtless because he has been most usefully and, I hope, more pleasantly occupied elsewhere during the earlier part of the afternoon, does not really appreciate the point which my hon. and learned Friend has made. I wish to support my hon. and learned Friend opposite, and to make a further appeal to the Government. Under this Bill, as it stands now, every British subject charged under the Defence of the Realm Act for offences too grave to be dealt with in a Court of Summary Jurisdiction, has the choice of being tried by a jury. As the Bill stands, if he is not tried by a jury he is tried by a court-martial. What the lion, and learned Member for York and myself desire the Government to do is to provide another alternative, not for the person charged, but for themselves. Where a person charged with a grave offence has not decided to go before a jury, we ask the Government to take power to try such a person not only by court-martial, but by a Special Commission if they think fit. We do this because you are dealing with offences too grave to be dealt with by an ordinary magistrate's Court.
You are dealing with offences which may be of the utmost gravity, and which may involve very difficult and important matters of law. It is quite easy to see that there may be cases where it is of the greatest importance that the decision should be made by men whose lives have been spent in studying and interpreting 732 the law, and not by military gentlemen, who, although they are experts in their own honourable profession, have not had the experience or training necessary for dealing with such points as might arise. We do not ask that this should be made mandatory, but that it should simply be another alternative which would tend to relieve the military power from work which they do not want to do, and it would set them free to do that work which is so urgent and proper for them to do at this time in their own profession. It would give the Government the option of still using the civil law of the country in these matters if they thought it suitable. I hope my right hon. Friend on this rare occasion, when we are asking him to take more power and not less, will feel himself able to be more sympathetic than he has been in regard to some other proposals this afternoon, which would limit the power of the Executive. Cases might arise where the duty would be better discharged by a Special Commission than by soldiers.
§ Mr. DUKE
The Amendment which the hon. Member for York has moved is merely a drafting Amendment, and that seems to be a point which the Under-Secretary for War did not appreciate, probably because he has not been taking part in these discussions. My hon. and learned Friend's subsequent proposal, for which this Amendment paves the way, is one that His Majesty's Government, if it thinks fit, in a case which appears to the Government more proper to be tried before a legal tribunal than before a military tribunal, shall be able to send such a case before a legal tribunal. I should like to point out what seems to me to be quite possibly an unintentional omission in the drafting of this Bill, and perhaps unintentional in the scope of the legislation which is dealing with this matter of emergency. His Majesty's Government, however strongly it might be pressed by some neutral Power, could not take the case of a neutral subject away from the military tribunal, although the case might be one involving difficult and grave considerations of law, and although amity with the neutral State and the desire to conciliate it might make it highly desirable that the Government should have some power of offering the alternative which we propose. I have in mind the case of the United States.
We have, and we always have had, large numbers of the citizens of the United 733 States here in this country, many of them residents, who never think of becoming naturalised in this country. Some of them may infringe or appear to infringe regulations which are here being dealt with. It would be in the highest degree desirable that upon representation of the Government of the United States, where the institutions are so like our own, that public opinion there would rather resent the sending of a United States citizen before a military tribunal, and without this Amendment the Government would be bound to send him to that tribunal. For my part I would repose in the Executive at this time of emergency the power to take a selected case of a neutral out of the general administration of the Act, and send it to be tried as we would try the case of an alien in this country. I make that observation only by way of indulgence, but I think there is real substance in the desire which my hon. and learned Friend has expressed, that His Majesty's Government should have a power of this kind which may be exercised, if for good and sufficient reasons they think fit. These Commissions do not spring up like mushrooms in the country. They involve trouble and cost, and the Government will not do it unless they ought to, but if such case arises specially, like that of the United States or one of the friendly European Powers, I should very much like the Government to have this power.
§ Mr. TENNANT
What the hon. and learned Member has just said certainly appeals to me a good deal, and I feel the force of what has been said. It is quite true that I did not realise that this was in the nature of a drafting Amendment, and I find that there is another proposal later on in connection with it. If I state that the War Office, in conjunction with my right hon. Friend, will consider the proposal and endeavour to see whether some form of words cannot be inserted at a later stage to carry out the intention of this Amendment, perhaps the hon. and learned Member will be good enough to withdraw his proposal.
§ Lord ROBERT CECIL
I hope the right hon. Gentleman will also consider a further point. Part of the scheme of this Bill is the question of Amendment. I ventured to say on Second Reading, and I think some hon. Members agreed with me, that there was a great difficulty in moving an Amendment. Take my old friend, the poor and innocent, accused under this Bill. 734 If he is charged with an offence, let us say, committed in some Southern County, and the venue is moved up to Northumberland, he will be in a great difficulty in order to get his witnesses there. I think the prosecution would feel this so much that they would never do it, with the result that you would never be able to get the man tried before the Civil Court rapidly. One of the advantages of the scheme of my hon. and learned Friend is that it would give an opportunity for a Civil Court to sit rapidly for the decision of these cases without any injustice to the accused. I hope that aspect of the case, in addition to the other aspect so well put forward by my hon. and learned Friend the Member for Exeter (Mr. Duke), will be considered before the question is finally decided as to whether some plan of this kind may not be adopted as a relief both to the accused and still more to the soldiers who feel, as I am sure the right hon. Gentleman the Under-Secretary for the War Office well knows, the burden of sitting on courts-martial as interfering with their work.
§ Mr. RONALD McNEILL
My hon. and learned Friend the Member for Exeter (Mr. Duke) has said that this Amendment is really only a drafting Amendment, and that point has been accepted by the right hon. Gentleman opposite. It is with the very greatest possible diffidence that I venture to differ with such authorities, so I will put my point in the form of an interrogation to the Attorney-General whether it is strictly and solely a drafting Amendment. I have been very much interested by what my hon. and learned Friend the Member for Exeter has said, and I think it would come with very great force if my hon. and learned Friend the Member for York (Mr. Butcher) ever comes to move his new Clause, but surely the new Clause and the present Amendment deal with a different matter altogether. If the present Amendment is accepted, it will give a third alternative to British subjects. The present Clause, so far as I understand it, is entirely confined to British subjects by the words in the introductory sentences.
Therefore, if the Amendment were here inserted, it would not deal with the case of the subject of a neutral State referred to by my hon. and learned Friend the Member for Exeter, but it would, on the contrary, deal solely with British subjects. Those two appear to me quite different points. It may very well be, and I should 735 be inclined to agree, that some such provision as my hon. and learned Friend's proposed new Clause should be inserted in the Bill in order to enable the Government in the case of an American citizen to set up a special tribunal to deal with it, but it is a very different thing to say that in addition to the ordinary option given the British subject of going before one of our ordinary Courts, or of going before a court-martial, he should be given the right to say. "I will go, not before an ordinary Court, not before a judge and jury, and not before a court-martial, but before a Special Commission set up by the Government." Surely that is quite unnecessary, to say the least of it.
§ Mr. DUKE
So far as I understand the drafting, the apprehension with which the hon. Member deals is not well-founded. It is not proposed here to give the British subject the right to be tried by a Civil Court or by a Commission. It is proposed that a British subject may claim to be tried by a Civil Court and jury instead of a court-martial, and, if you are going to introduce an Amendment, a Commission under this Act. It still leaves the methods other than a Civil Court with jury to be the methods to be pursued in the cases of other than British subjects.
§ Mr. R. McNEILL
Of course, I admit at once that my hon. and learned Friend has much more skill in matters of drafting than I have, and therefore I will put it before the Attorney-General to decide whether or not it is required in this particular place, or whether the point my hon. and learned Friend has pressed with regard to neutral subjects would not be sufficiently dealt with by the new Clause.
§ Sir J. SIMON
It does strike me that the new Clause is put down in such terms as to suggest that it is addressed to British subjects. It is drafted to read:—
"A Special Commission may be established in cases where the person charged has not claimed to be tried by a Civil Court with a jury under this Act."
That seems to me, at the moment, to suggest a Special Commission for British subjects, but I understand what is meant, and it does not matter. We need not discuss it now. We are grateful for the suggestion without being at all critical about the precise form of expression, but the fact that it does need to be examined 736 in its form of expression is our justification for asking the hon. and learned Member to withdraw it now and allowing us to consider it.
§ Mr. LAWSON
Is it not the fact that the rejection of the Amendment of the hon. Member for Yorkshire referring to aliens confines the operation of this Clause to British subjects?
§ The CHAIRMAN
I think that is so, but that is no reason for my ruling out of order here the Amendment of the hon. and learned Member for York. The thing I had to do was to see if he had sufficiently indicated the consequential proposals later on in the Order Paper, and I think that he has done so.
§ Mr. BUTCHER
In view of the assurance given that this will be considered in consultation with the War Office, I ask leave to withdraw my Amendment. I might say as regards my new Clause that it is intended to deal not only with British subjects, but with all others who may be charged, and, if the occasion ever comes, I shall be prepared to defend my drafting, or to admit that it is wrong if I am satisfied that it is.
§ Amendment, by leave, withdrawn.
§ The CHAIRMAN
The next Amendment in order on the Paper is that of the hon. Member for Warwick and Leamington (Mr. Pollock) to leave out the words,
"Provided that this Section shall not apply where, the offence is tried before a Court of Summary Jurisdiction."
§ Mr. BUTCHER
On a point of Order. Will my Amendment, providing that "This Sub-section shall not apply to persons of German, Austrian, or Turkish nationality who have not been naturalised for a period of at least three years before the commencement of this Act," be in order?
§ The CHAIRMAN
I thought that question had been settled on the hon. and learned Member's earlier Amendment.
§ Mr. BUTCHER
The question raised here is different. By my earlier Amendment I only wanted to give this right to go to a jury to persons who have not a double nationality—that is to say, to persons who had renounced their foreign nationality. This Amendment is for a different purpose altogether. It is to provide that no person of foreign nationality 737 who has become a naturalised subject shall be entitled to claim the right to go to a jury unless he has been naturalised for three years. It is not a question here whether he has a double nationality or not; it is a question how long he has been naturalised, and, if he has not been naturalised for three years, I propose that he should not be given the benefit of the Section.
§ The CHAIRMAN
I should have thought that had been discussed and covered by the decision to confine the Section to British subjects. That is my impression from the long discussion we had this afternoon.
§ Mr. BUTCHER
With very great respect I think that I am right. It is quite true that the Section so far deals with British subjects only, but I want to put a limitation on that. I want to say that subjects who were not natives to start with, and who have been naturalised for less than three years, shall not have the benefit of the Section. That is the point, and the only point I want to raise. In other words, I want to limit the class of British subjects who can claim the benefit of the Section.
§ The CHAIRMAN
I really think it was covered by the Debate this afternoon. It seems to me that we have decided to insert these words "British subjects" without limitation, and we must not go back upon that subject.
§ Mr. POLLOCK
I beg to move to leave out the words, "Provided that this Section shall not apply where the offence is tried before a Court of Summary Jurisdiction."
I move this Amendment for the purpose of eliciting some information from the Attorney-General. Under the Summary Jurisdiction Act of 1879 an alternative is given to a prisoner brought before a Court of Summary Jurisdiction, the alternative being "Will you be tried summarily or will yon go to be tried by a jury?" It would be unnecessary to make the Sub-clause with which we have been dealing this afternoon apply, and, if that is the purpose, then I desire to point out to the Attorney-General that the words which are used are quite inapt. The Clause with which we have been dealing has provided that at an early stage, shortly after arrest, a notice shall be given to the prisoner, and that notice shall put before him the alternative to which he is entitled: whether he shall 738 be tried by a jury or by court-martial. All that takes place before any Court has any seizing of the matter at all. If the object of these two lines is to say that you do not desire to put that alternative in the case where a man will get the alternative by reason of the fact that he comes into a Court of Summary Jurisdiction, I would point out that it is not secured by them, because under the Summary Jurisdiction Act the alternative is only given to the prisoner when he is brought before a magistrate. When a Court of Summary Jurisdiction proceeds to deal with an offence, it is provided by Sub-section (1) of the Section that the magistrate before going into the case is to put the alternative to the prisoner, and then by Sub-section (2) he has to put it in a particular form of words. All that happens at the time when the prisoner is actually before the Court. But here we have been providing, by Subsection (1), that as soon as possible, before any Court has the decision of the matter, the prisoner shall be given an alternative. It does not seem to me that these words meet the purposes for which I assume they are intended, because they say that "where the offender is tried before a Court of Summary Jurisdiction"—it may be it means where he is triable or going to a Court of Summary Jurisdiction—"then it shall not apply," These two lines, it appears to me, are not required, because we really mean to secure for every prisoner the alternative. Before he goes into Court he is to exercise the choice whether he will go before a jury or be tried by court-martial. If he exercises that choice he would then not go to a Court of Summary Jurisdiction. I venture to ask for information upon these two lines, and I repeat it, it seems to me that they are unnecessary, or if the purpose is, as I have suggested, then they are not effective to secure that purpose.
§ Sir J. SIMON
The hon. and learned Gentleman moved this Amendment in order to put a question as to the purpose of this proviso. Really he is not, if I may say so, fully seized of the point. If he had in mind the language of the Defence of the Realm Consolidation Act, that is the Act which we are now amending, he would be aware that in Sub-section (5) of Section 1 of that Statute, it is provided that Section 17 of the Summary Jurisdiction Act, 1879, shall not apply to charges of offences against the regulations, and that any person may appeal to a Court of Quarter Sessions. The matter really 739 stands in this way. Under the Defence of the Realm Act, a man may be accused of having committed a breach of the regulations. He may, in some cases, be triable at a Court of Summary Jurisdiction. In more serious cases he can only be tried by court-martial. If he is tried by a Court of Summary Jurisdiction, the utmost punishment than can be inflicted is six months' imprisonment. But he has not the right to claim a, jury under the language of the original Act. On the other hand, he has the right to appeal to Quarter Sessions.
Again, if he be tried by court-martial, of course there is no question of a jury at all, and now our amending Statute comes in and says that so long as he is not tried by a Court of Summary Jurisdiction, the meaning of the words now under discussion is that he is going to be tried by court-martial, and then he is to be entitled to say, "I am a British subject, and rather than be tried by court-martial I will claim my right to be tried by a jury." The words have nothing to do with Section 17 of the Act of 1879. That has already been dealt with. They are intended to make it clear that the right we are restoring to British subjects is a right which is restored to them in cases where they are not dealt with summarily.
§ Mr. POLLOCK
I should like to see it worked out on paper before I give my assent to the right hon. Gentleman's proposition; but still I accept what he says, because no doubt he has studied the matter. Even then, however, I should have thought it would have been better to use the words, "where the offence is going to be tried by a Court of Summary Jurisdiction." I am quite prepared, how, ever, to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Sir J. SIMON
I beg to move, at the end of Sub-section (1), to add the words—
"Provided also that before the trial of any person to whom this Section applies, and as soon as practicable after arrest, the general nature of the charge shall be communicated to him in writing, and notice in writing shall at the same time be given in a form provided by regulations under the said Act, of his rights under this Section."
It has been suggested by the hon. and learned Member for Leamington that it would be better to put the written form of 740 notice in the Schedule in the Act rather than in the regulations. That point I will consider. At the same time I am not certain it would be the better course, because soldiers who deal with these matters are extremely familiar with the regulations, and I doubt if they know very much about Acts of Parliament. Therefore I am inclined to think it would be better to put the form in the regulations. It is obviously desirable we should see what the form is to be, and I will put myself in a position, before the Report stage, to inform the House as to which of the suggested alternatives is deemed the more desirable by the Government.
§ Mr. POLLOCK
I desire to thank the Attorney-General for undertaking to consider this point. The question is whether the Regulations are more easily accessible than the Schedule. At the present moment I believe the Schedule is the more accessible, but still it is a practical point which can be decided later.
§ Mr. GOLDSTONE
May I thank the Attorney-General for having met the most substantial point of our criticism? Probably the words which he proposes to move are better and more workable than those embodied in our Amendment.
§ Mr. HAROLD SMITH
While I desire to join in the general appreciation of the Attorney-General's action, I would like to remark that I do not think the words, "as soon as practicable," are very satisfactory to be put in an Act of Parliament. It may be they can be fallen back upon in times of emergency, but I hope the learned Attorney-General will give consideration to my suggestion that if the inclusion of these words is deemed necessary they might be followed by words to the effect, "not less than" so many days "before the trial." That would not bind the authorities down to give notice within a certain period after arrest, but it would bind them not to take a man to trial until he had had reasonable notice.
§ Question, "That those words be there added," put, and agreed to.
§ Mr. ELLIS DAVIES
I beg to move, in Sub-section (3), to leave out the words "or to which he may be brought for the purpose of trial."
The object of my Amendment is to make it impossible for the Executive to change the venue of trial. The 741 Section as it now stands is really an infringement of the right enjoyed by civilians under the present law. In ordinary circumstances an offender must be tried in the county where the offence is committed. This Section provides that he may be tried in any place in the United Kingdom in which he may have been found or where in fact he is residing. To that I make no objection. But I do object to the further proviso embodied in the words, "or to which he may be brought for the purpose of trial." That means that it is for the Executive to decide when and under what circumstances he shall be put on his trial. One of the privileges, one of the rights we have most valued in the past, was that an offender should be tried in the county where the offence was committed. Presumably under ordinary circumstances he would be living there.
The result of the present proposal would be that the poor man—and I am not prepared to defend the rights of rich men—a poor man would be placed at a much greater disadvantage than he is at the present moment. We all know that where the Crown is the prosecutor money and talent are at its command, evidence can be procured and witnesses put forward wherever their presence may be arranged for. But, on the other hand, a poor man, who perhaps is quite wrongly charged with a breach of one of these regulations, may be taken right across the country to be tried in a strange town where he has no friends and no means practically of communicating with friends, or of obtaining legal assistance, or of securing the necessary witnesses for his defence. I think this is almost worse in itself than the original regulation by which the right of trial by jury was taken away.
§ Sir J. SIMON
I hope I am as open as anyone to appeals to consider the case of poor men, but I do not subscribe to the proposition that we ought not also to consider the case of rich men. This provision in the Act, when it comes to be considered calmly and quietly — without assuming that the Government have put a Clause in either carelessly or deliberately which is calculated to do serious injury to those whom it ought to be our business to protect—is a very simple one. I have already explained the object of the provision and I have an Amendment down on the Paper which I think will make it still more clear. The object is that as there are many counties in which Assizes are only held once in every three or four 742 months, there may be an interval of the best part of the year between one Assize and another. It may, on the other hand, happen that, immediately over the border in the next county, an Assize will be held within ten days of the arrest of the accused. Could anything be more absurd than to keep a person detained in the Assize county in which he was arrested, or where he committed the offence, when ten miles away there is a Court sitting which is qualified to try him if only he can be carried across the border?
The object is to secure speedy trial. In times of peace I have constantly heard it urged that, in the interests of the poor man, he ought not to be kept waiting month after month for his trial. I agree. It appears to me that if a poor man wants to be tried by a jury it is obviously in his interest, as well as in the interest of the State, that the trial should take place as speedily as is reasonably practicable, and that, if necessary, he should be taken across the border and tried in another county. It is not to be supposed that this provision is to be used for any other purpose, or as a precedent to carry a man to the ends of the earth and to put him to additional inconvenience. In order to make this meaning more clear, I shall later on suggest the insertion of the word "speedy," so to make the sentence read, "or to which he may be brought for the purpose of speedy trial." There is one other point in this connection to which I should like to allude, and it is relative to a proposal made by another of my hon. and learned Friends. It is felt, and it is quite a reasonable feeling, that this proposal to shift the venue might in some cases conceivably involve additional expenditure being cast upon the accused. That is a very serious and a proper point to raise and consider. At the same time do not let us assume that the law we help to make year after year is in such a condition that if an accused is put to the expense of getting witnesses he is left to pay for them himself. It is not so. My hon. Friend assisted in carrying the very Act of Parliament which prevents it being so.
There is a very well-known Statute recently passed, not in the lifetime of the present Parliament, in which it is provided that the expenses of witnesses—that is, proper witnesses, of course—for the defence, no less than for the prosecution, may be met, not out of 743 the private pocket of the person accused, but out of public funds. As far as there is any discretion in the matter, I have already made it my business to point out to the Director of Public Prosecutions that the Treasury should be careful in cases where any person has been removed for the purpose of a speedy trial to see that an application under that munificent provision should not be in any way opposed from a desire for economy where it ought to be applied to the man's defence. Of course, we cannot propose in this Bill to put a new charge on the Treasury. Having given that explanation, I ask the Committee not to strike out these words, which are necessary for both purposes, first, to secure the speedy execution of justice at a time of national emergency when the deterrent effect of punishment is important; and secondly, to give people who may be suspected without reason as early an opportunity as may be of being tried and acquitted. In these circumstances I hope my hon. Friend will not press his Amendment.
§ Mr. ELLIS DAVIES
The reply of the right hon. Gentleman in no way meets the difficulties I have pointed out. If the object of the provision is to give a fair trial, I would point out that at the present moment the change of venue can be obtained by an order of the High Court, whereas this Bill places in the hands of the Executive the power of changing the venue. The answer with regard to the payment of witnesses' fees in no way meets the difficulties I have pointed out. I pointed out the difficulty of producing the witnesses in Court, especially to a poor man who cannot provide the expenses.
§ Mr. SANDERSON
The Attorney-General has completely disposed of the Amendment, and the very reason which the hon. Member has stated just now is a good reason for rejecting it. This is an emergency Bill. Although we want to protect the rights of a person charged with any particular offence in every reasonable way, we want also to get the matter disposed of as quickly as possible. We do not want to have a, charge such as may be brought under this Bill hanging over for perhaps three months. I do not want to mention any particular county because it would be invidious; but there are some counties where Assizes are not held more than twice a year. If you are going to give the man the right which he 744 now has under the ordinary law of being tried in his own county or where the offence was committed, you may have a serious case remaining undisposed of for anything up to six months. From the point of view of the Executive in an emergency such as we are passing through now, it would be a very serious matter if a case were kept hanging over in that way.
§ Sir R. ADKINS
I should like to join in the chorus of thanks tendered to my right hon. Friend for the Amendment which he moved just now. I hope that the right of change of venue will not be limited merely to changing it into the next county, because while I am most anxious that these charges should be brought under the civil law and not under martial law, it may well be to the interest of the accused that the trial should be removed to London or some place at a considerable distance in order to get it tried promptly. If the change is confined merely to a neighbouring county, even then you may have to wait two or three months for trial. I interpret what the right hon. Gentleman said to me that he will see that the Public Prosecutor and other officials do use the powers given by that Act, and any other powers the Executive have, for assisting to the full in respect of the expenses of accused persons or persons the accused wish to have produced, because cases of this kind are those in which men are accused of what very nearly amounts to treason, and the expenses are serious. So far as the law allows those expenses should be paid.
§ Mr. KEIR HARDIE
In view of what has just been said, will it not be advisable to have it specifically stated in the Bill that the expenses of witnesses should be paid? I understood the Attorney-General to say that the Treasury have power to pay the expenses.
§ Sir J. SIMON
The hon. Gentleman will appreciate that we could not put it in the Bill, for the simple reason that it would amount to an additional public charge. I hope my language was not open to misinterpretation. I do not want it to be misinterpreted. The Act I referred to is the Costs in Criminal Cases Act, 1908. That Statute throws these expenses not upon the Exchequer, but upon local funds. There is a provision that the Courts, including Courts of Assize, may in any proceedings direct the payment of costs either of the prosecution or the defence or of 745 both out of public funds. What I said was that I had already pointed out to those who would be responsible for the prosecution that they must not throw any obstacle in the way of such an order being made to meet the costs of the defence. I did not wish to be understood to say that Imperial funds are used in practice for paying the costs of defence. The provision of the Statute is that local funds are so used. It is important that everything proper should be done by the Treasury Prosecutor not to put any obstacle in the way of that in a case where the expenses may have been heavier because the trial had been moved to another place.
§ Mr. KEIR HARDIE
Is it not possible to put a Clause in the Bill providing for the bringing up of witnesses where the case has been removed from a distance, under the provisions of the Act to which the right hon. Gentleman referred? It is quite easy to understand that if the trial takes place at a great distance from the place where the offence is alleged to be committed, it prejudices the case of a poor man who has to make his defence. If some such provision is inserted that would meet our case and possibly prevent great injustice being done.
§ Lord ROBERT CECIL
I am very grateful indeed for what the Attorney-General has done in this matter. I know the Costs in Criminal Cases Act, which is known by all of us who have to deal with criminal cases. It does not meet the difficulty I had in mind. I quite agree the difficulties are very great, and I have no definite suggestion to make. I am only anxious that the Attorney-General should devote his mind to it and see whether anything can be done between now and the Report stage to meet the point. All who have attended criminal trials must constantly have had what was called the stomachache to hear what goes on in these cases. The defendant says, "I should like to call John Thomas." The farce is indulged in of a policeman going about shouting for John Thomas, who is probably miles away at work in his village. In ninety-nine cases out of a hundred, perhaps, he can say nothing which is of the slightest value, but I have always had a feeing that John Thomas does know something which would clear the prisoner's character.
Whether the trial takes place in the county or near the place where the offence has been committed, there is a better 746 chance of the accused being able to get at the witnesses and getting them to leave their work for a day to give evidence in his support; but if it is miles away, and in a distant county, it is practically impossible for poor persons to do anything at all. It is not a question of expenses only. What is really wanted is something which will enable the accused person to know a day or two days before the trial that he can call any witnesses he wishes to call to meet what is a very serious charge indeed, because it will be very disastrous to him, quite apart from the punishment, and will be the kind of thing that will blacken his character for the rest of his life. Accused persons ought to have the opportunity of calling anybody they want to be called. I have no words to suggest at this moment. I know quite well there is the Poor Prisoners Defence Act. If the Attorney-General can see if something can be done to meet the aggravation of the ordinary hardship which affects a poor prisoner, personally I shall be very grateful.
§ Mr. R. McNEILL
Almost all the speakers upon this point, including the right hon. Gentleman, have gone on the assumption that the change will mean, in the vast majority of cases, that the accused person will be taken a greater distance. That is not at all the case. The hon. Member who raised this discussion, and some others, seemed to be under a sort of superstition about the sanctity of a county boundary. In a very great number of cases the trial will not only be expedited by the accused person being taken to a neighbouring county, but he will be taken to a very much nearer place; therefore it must not be assumed that in these cases a greater hardship will be inflicted by taking a man to Exeter, say, instead of to Bodmin or to the capital of any county rather than another. He and his witnesses may be, in point of fact, receiving very real benefit by having the venue changed. That would raise an additional difficulty in the way of solving the problem which my Noble Friend has presented, because he would have practically to go into every individual case, and not merely be content with assuming that a greater distance would be travelled and greater expense incurred if the accused person is taken out of his own county. He would have to see where the individual lived and whether he would not in actual practice have to be taken for a shorter, instead of a greater, distance.
§ Mr. POLLOCK
I have a suggestion to make in order to try to carry out the observations of my Noble Friend. Under this Act of 1908, under Section 5, there is the power of the Secretary of State to make regulations for various purposes, and I suggest that if the regulations, which I have no doubt exist under the Section, were amplified under the power they apparently have under paragraph (c) as to forms of orders, certificates and notices which are to be issued, it might be possible to make some further regulation under the powers of that Act which would meet the very point that my Noble Friend took, and which really all the Members of the Committee desire to be put in force. Some further regulations pointing out and giving notice of what is required might have just the effect which is desired by various speakers.
§ Sir W. BYLES
I have been impressed by the argument of my hon. Friend (Mr. Ellis Davies), and I do not feel that the force of his argument has been entirely removed. There is a certain amount of opinion outside this House on this very subject. I have to-day received a letter from the Federation of Newspaper Owners and Proprietors, with which I was formerly connected, stating that they have passed a resolution reading thus:—That the conditions under which the Crown may change the venue of civil trials or substitute Military Courts should be circumscribed and defined.There is a certain amount of public opinion outside this House which ought to be removed by the declaration of the Government. Of course, I shall acquiesce in whatever course my hon: Friend says.
§ Amendment, by leave, withdrawn.
§ Amendment made: After the word "of" ["For the purpose of trial"], insert the word "speedy."—[Sir J. Simon.]
§ Mr. KEIR HARDIE
I beg to move, at the end of Sub-section (3), to add the words, "Provided that the person charged under this Section shall have the right to claim to be tried at the place in which the offence was deemed to have been committed."
At present an accused person may be tried anywhere when he is arrested, no matter how far away from his home. We can conceive cases in which a miner may 748 have moved, say, from Wales to the North of England, and after he has gone suspicion may fall upon him and he may be arrested. If he is to be tried in the North of England it completely shuts him off from all his witnesses and all means of defence. I think it is fair in a case like that that the man should have the means of returning to his home to stand his trial there.
§ Sir J. SIMON
I assure the hon. Member that I am entirely sympathetic with the object which has moved him to suggest this, but he will see on reflection that if that is put in, it really confers upon the accused person the right to postpone his trial in certain cases for three months, even although the Clause, as far as possible, provides for a speedy trial. I cannot help thinking that the real way to deal with it is to follow the lines suggested by one or two speakers, and see whether we cannot make more certain than perhaps is the case at this moment, that any witnesses that he wants shall be procured. If you take, for instance, the rules of procedure which cover the much abused court-martial, one of them is that the accused, before he is arraigned, shall be informed by an officer of every charge on which he is to be tried, and also that on his giving the names of any witnesses whom he desires to call in his defence, the necessary steps will be taken for procuring their attendance, and those steps shall be taken accordingly. So, at any rate, it looks as if the military Courts can, in this respect, set us an example, which I shall do my best to follow.
§ Mr. GOLDSTONE
If what the Attorney-General says amounts to a pledge that there will be a definite provision—I understand he cannot give such a definite pledge.
§ Sir J. SIMON
I should never think of giving a pledge till I have considered the subject. I have promised to consider it.
§ Mr. GOLDSTONE
If, then, the right hon. Gentleman assures us that he will give favourable consideration to the point and endeavour to find some means of ensuring to the poor man that the expenses of his witnesses will be met, I think we shall not press our Amendment. We want to be assured that the poor man is not to be prejudiced in any charge which may be levelled against him, and if we have the qualified assurance now 749 given by the Attorney-General, my hon. Friend will probably not desire to press his Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. ELLIS DAVIES
I beg to move, in Sub-section (5), to leave out the words "or other special emergency arising out of the present War."
The object I have in view is to prevent the Executive from abolishing by proclamation the rights which we have gained by this Bill for the citizens of this country. I observe that the Attorney-General has put down an Amendment by which he proposes to qualify the Clause by a reference to a special military emergency. I think what has been said in the course of the Debate in regard to courts-martial must have convinced him by now that the sense of the House is against doing away with the right of civilians to go to the Civil Courts to have justice administered by men of knowledge and experience who are acquainted with the law. I have never understood how anything which has happened, or anything short of invasion which may happen in this country, would justify the Government in placing civilians under the control of military officers. Military officers may be absolutely fair in what they do in regard to the enforcement of the regulations, but neither their knowledge of the law nor their experience in sifting and weighing evidence is calculated to create in the public mind a strong belief in their capacity for the administration of justice. If it be urged that speed is required and that effective justice would be meted out, then it is open for the Government to appoint special commissioners. I understand that at present neither judges nor barristers are overburdened with work, and I suggest that if we cannot make use of the High Court judges, there are a large number of qualified men in the King's Bench Division who are perfectly competent and willing to act as commissioners in this matter. I know no reason why officers who are required for military duties should be taken from these duties and asked to perform functions for which they are not, in my opinion, qualified.
§ Sir J. SIMON
I regret that I cannot accept the Amendment. There is only one change in the Clause which the Government feel justified in making, and that is the change down in my name to make it quite plain that when speaking of other special emergencies we are not speaking of industrial disturbances. The idea, if 750 such an idea prevails anywhere, that we are reserving these powers to use Military Courts to meet eases arising out of industrial disturbances, must be contradicted. Of course, nothing of the sort was in contemplation by the Committee or the Government. My hon. Friend says he cannot think of anything but invasion which would possibly justify the resurrection of these powers. I do not want to indulge in imagination. It is not a fruitful use of imagination; but certainly I can think of something which is not in terms "the event of invasion" which would justify the use of Sub-section (5). If the Sub-section is going to be altered it will not be done with the consent of the Government, because we have a great responsibility, and it is a responsibility which we ought not in any way to qualify. It is very natural that there should be a feeling that these special provisions are most unfortunate necessities. Nothing but necessity would justify the use of such powers.
We all wish to believe that we are living under the ordinary traditional law of the land. Neither do we wish to introduce the words which I used on the Second Reading. In the last resort when there are no Civil Courts available at all, military justice is resorted to, because needs must. It is simply the principle of self defence. The Committee will observe that Subsection (5) contemplates a proclamation which might apply only to a particular area. Supposing you have an invasion or an active bombardment intended to lead up to an invasion in some particular quarter of England—supposing it is claimed that in a certain number of hours one end of a certain line of railway will be effectively under the control of the enemy—is it to be said that because there is at the other end of the railway a town where the Courts are open we therefore must take cases to these Courts for trial. It is not practicable and it is not possible. No Government that comes here and asks for the qualification which we ask for in the original Bill and which restores, as we are restoring, the right of trial by jury is likely to abuse the powers conferred under Section 5. No one supposes that it is going to be other than unpleasant to enforce the powers, but if the necessity arises the duty has got to be performed.
§ Sir R. ADKINS
I think everyone who has been here to-day will have appreciated the unfailing courtesy and the continuous power of exposition which the Attorney-General 751 has shown. I can assure him that those of us who remain unable to be conscious parties to this Clause are just as anxious as he is that this country should be properly protected and that the realm should be fitly defended. The Bill does not repeal the Defence of the Realm Act in the overwhelming majority of its provisions. It does not interfere with the powers of the Executive at moments of national emergency. I take the illustration which was given by my hon. and learned Friend. Suppose it occurs that certain parts of this country are being bombarded, that invasion is a possible contingency, and that one end of a line of railway may be likely to fall into the hands of the enemy, why is this particular Act of Parliament, so carefully limited and so carefully hedged in in many ways, to be abrogated? There is nothing in this Bill that will interfere with any departmental power of the Executive. All it secures is that, after an interval the duration of which nests with the Government, British subjects may have the right to be tried by the ordinary Courts of the realm in the ordinary way. It rests with the Government and the Executive, and not with the people themselves, as to when that trial takes place. In fact, no emergency, except actual invasion, could interfere with the powers of the Executive or its directions, nor bring it about that the Clauses of this Bill could not naturally or fitly apply.
Every Member of this Committee would be prepared to sacrifice even those principles of the Constitution which we hold most dearly, if we thought the sacrifice necessary for our national existence, but when we are told that this Act of Parliament is to be abrogated on any military emergency, how can that be justified except by a faith in the infallibility of the Executive which Englishmen up to now have never been called upon to exercise, and which has never yet become an article of faith among members of any political party, or persons of any standard of education in this country? I have never seen what real defence there is for taking this power. We should all probably agree to acquiesce more or less with this abrogation in the case of invasion, but where there is no invasion, where the Courts themselves can sit, when the whole of the rest of the executive action of Government is unaffected, where a man can be thrown into prison, where you lean establish 752 martial law if you think it necessary, there is surely no case to give this specific power of repealing by the decision of the Executive by proclamation, of course at the instance of the Executive.
This Act of Parliament has itself been carefully, I do not say wrongly, restricted at every turn, and confines itself and is only concerned with a particular form of tribunal which has been, thought adequate up to now throughout our whole history in every crisis. If this Bill became an Act without this power of the Government for repealing it by proclamation, or suspending it, we should still be in the same position in which this country was in the days of the Napoleonic wars. All kinds of things were then done which restrained the liberty of the subject—in some respects more than is done or contemplated to-day—but then, at any rate, the tribunal to which those subjects were ultimately brought was the civil tribunal of the country. If that were not only possible, but did in practice work throughout those still more difficult days, then I am afraid that my right hon. Friend must forgive the decision to which some of us have come to give no vote in support of this provision, and to make our protest respectfully, with the utmost loyalty to the Government and to the country, against a provision which appears to us to be unnecessary, and to be opposed to those civil rights, the maintenance of which is the concern both of the Government and of the country.
§ Mr. WHITEHOUSE
On a point of Order. My right hon. and learned Friend in speaking just now referred to Amendments other than the one under discussion. May I ask whether we are now going to take the general discussion on these five Amendments dealing with the same subject, and whether you are going to call each Amendment?
§ The DEPUTY - CHAIRMAN (Mr. Maclean)
It would all depend on the range of the present discussion. I think that as far as the discussion has gone it is covering an Amendment which stands in the name of the hon. Member who has already addressed us.
§ Lord ROBERT CECIL
With all respect, I think that that is a convenient course. I desire to say a very few words to explain why on this occasion, though I have been very largely in sympathy with the hon. Member for Middleton in many of the things which he has said in this discussion, 753 I am wholly opposed to the particular proposal which he makes. The real question is: Should Sub-section (5) exist at all? The Amendments which he desires to insert in it are really the negative of that Subsection altogether. The position is this: At the common law, when the Courts are unable to sit, martial law takes the place of the ordinary law, and courts-martial are the ordinary means of enforcing martial law—a much more serious state of things than anything which has been proposed up to the present. The moment, therefore, that the Courts cannot sit, no question of increasing the powers of the Executive arises at all; they are absolutely supreme, because martial law is merely the will of the military commander. Therefore, if you put into this Clause the proposition that it is not to have effect except when the Courts cannot sit, you really negative the whole of this Sub-section. Therefore, what the Committee has to consider is whether any such Subsection is desirable. Is it desirable that in case of invasion, or of special military emergency, you should have these kinds of offences tried summarily by court-martial? I cannot imagine anyone who would take a different view as to what was desirable in such circumstances. It seems to me that the whole question of the Defence of the Realm Act ceases to be of any importance if you are not going to give the Executive of the country the very elementary power which is involved in this proposal.
Personally, I think that that is the very limit of any concession that should be made. I do not at all take the view that invasion is the only circumstance in which it is desirable. Where the Government have reason to suspect that there are people ready to assist invaders in this Island who ought to be removed immediately and dealt with summarily in order to prevent any people imitating their example, you must take whatever powers are necessary to protect the realm—even the course of suspending civil law. The hon. Member referred again to-day to the days of die Great War. I really think that the comparison is in favour of the proposal made by the Government in this case. It is quite true that Pitt and his advisers left the juries because they found by experience that juries would do anything which they were asked to do—very nearly. Man after man was convicted under the very stringent legislation that was then in force, amidst the vehement protests of the 754 Opposition of that day, who did not take the view of their duties that the present Opposition take. I thought that it was common knowledge that an immense number of people were punished, and very severely, for offences much more remote than any offences dealt with in the legislation of the present Government. Personally, I do not think that the Government, policy has been very wise in dealing with this particular emergency. I should have preferred myself for the country not affected by the special military emergency of invasion something in the nature of strengthening the civil procedure rather than establishing Military Courts. I do not think it matters very much, but that is my view. Where a part of the country is actually affected by an emergency, I have no doubt that a Military Court is the proper Court to deal with the situation. You may not get so high a standard of justice in such a case, but it should be remembered that you are actually fighting for your life, and your first duty is to protect it, though with every possible regard to justice, consistent with that primary necessity of all civilised communities, and indeed all human beings.
§ Mr. WHITEHOUSE
The learned Attorney-General will realise that he has put me in a very unfortunate position at this moment, because I have simply followed his own advice, given to us on the Second Reading of the Bill, in deciding upon the character of the Amendment which I put down to meet this special point. The Attorney-General, on the Second Reading, in his definition of what he meant by a military necessity or a special emergency, was an emergency where the Civil Courts were not available for the effective discharge of their duty. I cannot see, therefore, that being the learned Attorney-General's own definition of his meaning, what is the objection he has to placing the matter beyond all doubt by putting in the words that I have suggested, or some similar Amendment. I listened in vain to my right hon. and learned Friend for the reason why he so strongly objected to any material alteration being made in this Clause. Nor did I receive any enlightenment, if he will allow me to say so, from the Noble Lord who spoke last. May I put the matter like this? If a military necessity arises, the district affected will be placed under martial law, and, as the Noble Lord said, no question arose then as to trial by court-martial.
§ Lord ROBERT CECIL
The hon. Member speaks of putting the district under martial law. What I said was that where necessity arose the Military Court would be the proper tribunal.
§ Mr. WHITEHOUSE
That is saying the same thing in rather different words. If no necessity which leads to martial law has arisen, obviously the Civil Courts will be available. In that case, what I have failed to get any opinion about at all, is what will be the advantage of military trial over trial in a Civil Court. It appears to me that the military authority would be much more overworked, and would be working under far greater pressure and excitement, and, on all grounds, it would be better, I think, to use the Civil Courts so long as they were available. I would point out to my right hon. and learned Friend that the Amendment on the Paper which stands in my name still leaves him a wide discretion. It would still fall upon the Executive to decide whether the Civil Courts were effectively available for the discharge of their duty. I suggest to my right hon. and learned Friend that, in a crisis and in a time like this, no quibbles will be raised as to the decision of the Executive whether the Civil Courts were available for the effective discharge of their duty or not.
§ Mr. DUKE
The hon. Member does not assume, I take it, that the Courts would not be open to anybody who might in a lawful manner raise a question. No doubt, as the right hon. Gentleman has stated, it would be competent to any person to challenge the Proclamation, and I think persons litigious enough would be found to undertake that.
§ Mr. WHITEHOUSE
With much respect to the hon. and learned Gentleman, it seems to me that the contingency he mentions is a very remote one indeed, and would really not arise in the working of this Act. I therefore wish once more to renew my appeal to the right hon. and learned Gentleman to consider whether it is not possible to state a little more definitely what this Clause in the Act of Parliament really means, because, if it is left unamended except for the elision of a single word that the right hon. and learned Gentleman suggests, it will still be very vague indeed, and confer very undefined powers upon the Executive Government. Therefore I desire to associate myself with 756 what my right hon. and learned Friend behind me (Sir Ryland Adkins) has urged, and I shall certainly support him if he goes to a division.
§ Mr. DUKE
I wish to point out that so far as the risk which the learned Attorney-General has indicated might arise upon such a Clause as the hon. Member has forecasted is concerned, I regard it as a real risk, and my only observation, on reading this proposed Clause in the Bill, was that I thought His Majesty's Government would be well advised if they added to the words which they have here, words which make it clear that the existence of invasion or special emergency within the meaning of the Clause was to be decided by the Proclamation, and was not to be a question of fact. I mention that because I regard as a real risk, that of a mischievous or ill-disposed person, not men of the spirit of the hon. Member, or of hon. Gentlemen on the other side of the House, but a mischievous person, who desired to embarrass, and who would be in a position to raise points of law. I seriously suggest to my right hon. Friend that he should consider, before deciding, whether he can use words which would make it clear that the Proclamation was to be the only evidence which was required of the existence of a case of emergency. I think it is absolutely essential, if we have a Government, that we should have confidence in it, and although I am not their natural supporter, I have myself confidence in them in a matter of this kind, and we must leave them to deal with it.
§ Sir W. BYLES
We have been considering this afternoon, for some five or six hours, the amending of the Bill which was passed rather hastily some months ago, providing that offenders shall be tried by Civil Courts if they wish it. This Subsection which is now before the Committee takes all that back again. In case of military emergency it confers powers, by Proclamation, to restore the operation of the former Bill. The Amendments before the Committee at this moment are an attempt to retain some of the advantages of the Civil Court which we have been trying all the afternoon to secure for these offenders. I have so much more faith in Civil than in military tribunals that I shall be bound to support the Amendment.
§ Amendment negatived.757
§ Amendments made: In Sub-section (5), after the word "special" ["special emergency"] insert the word "military."—[Sir J. Simon.]
§ At the end of Sub-section (5), insert the words, "The expression 'British subject' in this Section includes a woman who has married a foreigner, but who before marriage wan a British subject."—[Mr. Ellis Davies."]
§ Question, "That the Clause, as amended, stand part of the Bill," put, and agreed to.
§ The DEPUTY-CHAIRMAN
The proposed new Clause, standing in the name of the hon. Member for Glasgow and Aberdeen Universities (Sir H. Craik), seems to me to be outside the scope of the Bill.
§ Sir H. CRAIK
Is there anything in the title to narrow the scope of, the Bill, and if not, is it not possible to bring this in, as there does not seem to me to be any classification?
§ The DEPUTY-CHAIRMAN
The Clause seems to me to be out of place where the hon. Gentleman desires to move it, and also quite outside the scope of the Act which it is proposed to amend, and for those reasons I have come to the decision which I have just stated.