HC Deb 09 March 1915 vol 70 cc1325-44

(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 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 mentioned in Section 1 of that Act, but a felony under this Section shall not be friable 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.

Sir J. SIMON

I beg to move, to insert at the beginning of the Clause,

"(1) Any offence against any regulations made under the Defence of the Realm (Consolidation) Act, 1914, which is tr[...]able by court-martial may, instead of being tried by a court-martial, be tried by a Civil Court with a jury, and when so tried the offence shall 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."

This is the Amendment to which I just now referred. As the Bill left the Committee there was no power to try offences against the Defence of the Realm Regulations committed by a foreigner. This Clause will confer power to try a foreigner by a jury, but it does not give him the right to claim such a trial. I hope the House will feel that this is an improvement in the Bill, and it meets the difficulty raised by some hon. Friends of mine. It will enable the Government to make more and more use of the Civil Courts as time goes on.

Mr. WHITEHOUSE

Who will decide whether the Civil Court will be used?

Sir J. SIMON

The prosecution.

Mr. W. ROCH

I am grateful to the Attorney-General for this proposal. I am still anxious, however, as to who is going to be the prosecutor. I understand from what the Attorney-General has said that the prosecution will decide whether it shall be a court-martial or a Civil Court. The effect of that is to give the Civil Executive the power of putting the law into force. In that I foresee this difficulty. I will assume that an offence is committed under the Defence of the Realm Act. Under this Amendment in the Bill, both the police and the soldier will have power to deal with it. Supposing the police and the soldier differ, who is to decide? This proposal might give rise to a greater difficulty, and I should like to feel more clear as to how it is going to work.

Sir J. SIMON

The answer to that is that there are not two Executives in this country. It is true that the head of the War Office is one person and the Attorney-General is another, and the question as to which of them controls a particular prosecution is a question which may have to be decided in some individual case. When I say the prosecution determine, I mean the Executive as a whole has to determine how a case has to be dealt with. The House may be sure that within our powers the Civil Executive will take the proper course.

Mr. BUTCHER

I thank the Attorney-General for putting down this Clause, which meets my point of not taking up the time of a number of our prominent soldiers dealing with courts-martial. I hardly think, however, that the Attorney-General has met the point raised by my hon. Friend opposite. We have had a good deal of divided responsibility in matters of Executive, and I really think that there is something in the point. This Clause provides that a case which otherwise would be tried by court-martial may be tried by the Civil Court. If it is going to be tried by court-martial in the first instance, the prosecutor would necessarily be a military man, and he would be subject to the control of some military authority. Therefore, primâ facie, it would be the military authority who would be able to say that it should go to a Civil Court. The Attorney-General says that is true, but he would work in concert with the Civil Executive, viz., himself. I think it really ought to be made more clear whether it is the military authority who is to send it to the Civil Court, or whether it is the Attorney-General. I can well see that a difficulty might arise in which the military authority would say, "I wish to keep this to be tried by court-martial," and in which the civil authority represented by the right hon. and learned Gentleman would say, "I wish this to go to a Civil Court," and it would be well if the Attorney-General could suggest some form of words which would avoid any such difficulty arising. If he would put in some such words as "May upon the request of the Attorney-General be tried by the Civil Court," I think that we should get over the difficulty which might very well arise in the operation of this very useful Section.

Sir J. SIMON

We could deal with the matter by regulation.

Sir R. ADKINS

I wish to thank the right hon. and learned Gentleman for this Clause, which does meet to a considerable extent a matter on which many of us feel strongly. I quite realise that the point raised by my hon. Friend could be met by regulations, but regulations are only known to the persons concerned and not to the public. I do not know what difficulty there would be in accepting the words suggested by the hon. and learned Member opposite: "May at the request of the Attorney-General," or "at the instance of the Attorney-General," instead of being tried by court-martial be tried by a Civil Court. Having made this concession and increased the use of the Civil Courts under this Act, I think that the more clearly it is laid down to everybody who sees the Act the better, and I hope that my right hon. and learned Friend will consider the matter.

Lord ROBERT CECIL

I really do not think that there is anything in this point. It is quite plain that before the trial the Executive will, in some form or other, be able to intervene, and, if they thought that it was better to try the case by Civil Court, it is quite clear that the court-martial could be directed not to proceed, and it would be tried by the Civil Court.

Question, "That those words be there inserted," put, and agreed to.

Mr. DENMAN

I beg to move, in Subsection (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."

The Amendment has for its object the extension of the provisions of this Bill to Allied and to neutral persons in this country. The House will remember that this proposal was negatived in Committee, but we have a considerably larger attendance here to-day, and I venture to submit it to the House once more on its merits. The Government have never alleged on any ground of national safety that this Amendment is undesirable. Had they come to us and said, "We have reason to think that there is a danger in extending this right of trial by jury to neutrals and Allies," I might personally have maintained a private scepticism, but I should not be moving this Amendment. The Government, on the contrary, have opposed this Amendment for reasons which we are all in an equal position with the Attorney-General to examine. The first ground was the ground of administration. The Attorney-General told us that it was very easy to decide who was a British subject. If you brought a man into Court and he desired to claim this right, you put to him the question, "Are you a British subject?" and he could prove this comparatively easily. It was pointed out, in answer, that it may be exceedingly difficult to prove whether you are or are not a British subject if you happen to belong to some remote portion of the Empire and to have a Teutonic name.

It was also pointed out that the Government had in point of fact divided the inhabitants of this country in quite a different way. They had divided them into alien enemies and all others. We were told the other day by the right hon. Gentleman who represents the War Office in this House that every single alien enemy in this country is known and is at this moment under constant police surveillance. He also pointed out that every single alien enemy is known and registered under the Registration Aliens Act. That being so, surely on the administrative ground simplicity obviously ties with the Amendment. The Attorney-General also laid great point on the need for rapidity of procedure. Clearly the need for rapidity of procedure is met by this Amendment and not by the Bill. A man is brought before the Court, and, if the police certify that he is an alien enemy, he cannot claim the right of trial by jury; otherwise, he would have free choice. On the ground of administration, therefore, I am sure that the Attorney-General would have to accept the Amendment. In answering, towards the end of the Debate he took another ground. He said that the only division that occurred to one was that of British subjects and all other persons. There is no more difficulty in dividing the people into enemy aliens and others than in dividing them into British subjects and others The fact that the Government have already taken the first course for the purposes of national defence proves that they had no difficulty in the early period of the War in making that decision, and, whatever might have been the value of that logical argument, the Attorney-General has himself blown it sky high by the Amendment he made later on in the Bill itself.

I do not know whether the House realises that it is now possible under this Bill for the wife of a German who has been a British subject to claim the right of trial by jury. If she happened to be a loyal wife, loyal to her husband and children and she happened to have her home in Germany, she might reasonably be expected to have German sympathies, but, whether that were so or not, she would have the right to claim trial by the civil authority. If that is the best this House can do in the way of logic or common sense, I venture to say that we are open to the criticism of the other House. Finally, I want to put before the House the argument of policy, which is a serious one. We are saying by this Bill that we are prepared to restore the right of civil trial to certain inhabitants of this country. We are not prepared to restore it to alien enemies, but we have the free choice of saying what we shall do with neutrals and Allies. We can say to them either, "We choose to-class you as Germans," or, "We choose to include you as British subjects." When the Bill was drafted that point may have been a minor one and of no importance, but, after the event of last week, surely it is very desirable for us to be able to say to Americans, Danes, Swedes, Belgians, and all neutral and allied persons that we are treating them well. I submit that it is a lamentable error of judgment at this moment to neglect paying homage to the rights of neutrals and making to neutrals a concession that would clearly be graceful.

Mr WHITEHOUSE

I beg to second the Amendment.

Sir J. SIMON

This matter was debited fairly fully on the Committee stage, and, while I realise that my hon. Friend has put again with great force the views which he holds in reference to the arguments I then used, I am sorry to say that I still think they were good arguments, and I must remind him that they found favour with the House in the sense that the proposal which he then made was not accepted. The real truth, as I then pointed out, is that you have to choose between two things: You must either say that the right to be tried by judge and jury is a right which attaches to an individual who is neither a soldier nor a sailor without any regard to his nationality, or else that you are going to restrict it to British subjects. There is no rhyme or reason why you should say that the right is attached to a person who is actively engaged in betraying this country's interests, but who claims to be a neutral of pronounced German sympathies, unless at the same time you are going to confer it upon the German himself. I defy anybody in all eases to draw a distinction with certainty between the two, or to ascertain to which of the two classes a man belongs. I am sorry, therefore, that we cannot alter the Bill in this particular.

Mr. STUART-WORTLEY

There is one consideration always left out of account. It is assumed that you are going to deal with the major offences under the Defence of the Realm Act, and if we proceed to make the necessary further assumption, it must be supposed that you are dealing either with a guilty or an innocent person. If you are dealing with an innocent person, you are not only entitled, but almost bound, to show more consideration to the subject of a neutral State than to your own subjects, in the interests of British justice which has made its name famous all over the world. If you assume that you are dealing with a man who is guilty, then I do not hesitate to say that the offence of helping the enemy is worse in the case of a British subject than in that of a neutral, and he is less entitled to our sympathy than a neutral subject in whom such conduct is infinitely more justifiable. When the Attorney-General says that on administrative grounds it is not possible to draw the distinction, I suppose that we must listen to him and not ask the House to accept this Amendment, but really you may be giving this privileged position of a right to a trial by a civil tribunal in a great many cases, and it is just possible the most important cases, to the least deserving of all the classes with whom you have to deal.

Mr. M'CURDY

The speech of the last speaker proceeds clearly upon the assumption that in granting the privilege of trial by jury as an alternative to trial by court-martial for these offences we are conceding something really of very substantial value, and therefore that unless it be extended to the case of alien friends or neutrals we are depriving all our friends of some benefit. I feel bound to rise and protest against that view. I cannot help wondering whether, in the course of this Debate, the Attorney-General has not come to regret that this Bill was introduced at all. If we really looked the facts in the face, we should be bound to admit that the only purpose, or at any rate the main purpose, for which this Bill was introduced was not to remedy any defect in existing legislation and not to undo any mistake committed in haste at the commencement of the War, but to conciliate a perfectly unreasonable British sentiment, a British sentiment which thinks that trial by jury—a right established by Magna Charta—should be maintained in time of war, and that nothing shall be done which would imperil that palladium of the British subject. But what are the cold facts of the case? The country has been suddenly plunged into a state of war and a class of offences has come into existence, offences in which the possession of an alien name or appearance may constitute an element of risk—offences in which the feelings of those who have to try them may be inflamed by passion. It is proposed on one hand that there should be a suitable tribunal to try that class of offences, and it is also said that the proper tribunal under war conditions would be a British jury. Would any Member of this House suggest that, on questions of that kind, twelve men who may be found heatedly discussing these questions in a tramcar would be a really suitable and judicial body to whom to entrust the lives and liberties of fellow citizens? Does it materially alter their suitability that they should be confined within a box?

On the other hand, we have at any rate in the community one class of persons who conspicuously have not lost their heads and who have preserved their balance of mind in this national emergency. In the case of a soldier and a sailor war does not introduce such a disturbance of the mental faculties as it does in the case of the average jurymen. To suggest, as has been suggested, that it is really an unfriendly act to a neutral, to a Dutchman or a Scandinavian, to say that he shall not be allowed to throw himself on the judgment of a British jury, instead of having his case tried by a trained tribunal, appears to me to be a grotesque inversion of the true facts of the case. If it were possible, when the interests of criminal classes are being considered in this House, for those classes to be directly represented, they would often have to say, "Save us from our friends." It is not long since that this House, in a passion of philanthropic frenzy towards suspected persons in this country, was engaged in passing the Criminal Aliens Act, which hon. Members opposite below the Gangway were too shrewd to allow it to be applied to their own country.

Mr. HEALY

Hear, hear.

Mr. M'CURDY

The only effect of that Act has been to make it much more difficult for an accused person to obtain an acquittal. The effect of this Act, in restoring trial by jury, will be to expose to very great peril any person who may be accused of an offence involving espionage, the improper use of lights, or any other of those matters which so exercise the public mind at the present time, should they be so ill-advised as to select the tribunal of the British jury. It is because I think that that peculiarly British privilege should be reserved for British subjects that I venture to oppose this Amendment.

Sir PHIPSON BEALE

The real question involved here is whether, in the case of a person who is neither an alien enemy nor a British subject, but an ordinary foreigner, it is for him to decide, or for the prosecution, whether he shall be tried before a jury or by a court-martial. I do not think that, in proper cases, the Executive would fail to send the accused person before a jury in preference to having him tried by court-martial.

Question, "That the words proposed to be left out stand part of the Bill," put, and agreed to.

Sir R. ADKINS

I beg to move, in Section (1), to leave out the words, "within four clear days from the time when the general nature of the charge is communicated to him to claim."

The arguments in favour of giving trial by jury in all these cases have unfortunately not been accepted by the Government or approved by the House. Some of us believe that if trial by jury is to be restored—and some of us do wish it to be restored, in spite of the elaborate cynicisms of the hon. Member for Northampton—would like to see it done quite clearly and plainly, without all these elaborations which are introduced into this Bill. The Government must contemplate that everybody will exercise his choice in favour of having a jury in the future, and, if that be the case, why should it be made a matter of choice at all? My right hon. and learned Friend was so good, on the Committee stage, as to promise that he would inform the House, on the Report stage, of the particular words which will inform the prisoner that he can, if he chooses, be tried by jury. I know I cannot hope the Government will accept my Amendment as it stands, but I should be grateful if the Attorney-General would take this opportunity of communicating these words to the House. We under stand that it will be more convenient to have them in the Regulations rather than in the Act itself, but I think the House before it parts with the Bill, and through it the public, should be made generally aware of the definite phrase and words in which this power to be tried by a jury is to be made known to everyone charged under this Act. In order to secure that information I beg to move my Amendment.

Mr. ELLIS DAVIES

I beg to second the Amendment.

Sir J. SIMON

My hon. Friend raised this matter on the Committee stage, and I think he will agree that it was then discussed from all points of view. He will, therefore, forgive me if I do not repeat the arguments which were then accepted by the Committee. But I am much obliged to him for affording me this opportunity of doing what I undertook to do on the Report stage, and to tell the House the form of words in which we shall give notice to the accused person that he has a right under this Section to go before a jury. It is well that it should be seated in the simplest and plainest terms, so that there may be no possibility of dispute. At the same time, we should also give the phraseology of the form in which the accused can make his claim. The first form will read:—

"You are charged with [here will be inserted the general nature of charge]. If you are a British subject you will have a right to be tried for this offence by a Civil Court, with a jury, instead of being tried by court-martial. Do you wish to claim to be so tried? If so, you must, within six clear days, fill in and sign the appended form."

This form, or notice, must, of course, be dated, and the six days will count from that date. Then the form of claim will be in the following words:—

"I, being a British subject, claim to be tried for the above-mentioned offence by a Civil Court with a jury, instead of by a court-martial."

This, too, must be dated and signed.

Mr. HEALY

To whom must it be addressed?

Sir J. SIMON

That is a perfectly good point. We ought, by the Regulations, to provide to whom this document should be addressed, and I will see that that is done. I imagine that the proper person to whom to address it would be the person who, on behalf of the Executive, declared the general nature of the charge. At any rate, I will see that proper provision is made for that.

Question, "That the words proposed to be left out stand part of the Bill," put, and agreed to.

Amendment made: In Sub-section (1) leave out the words—

"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,"

and insert instead thereof the words, "not to be tried by court-martial."—[Sir. J. Simon.]

Mr. ELLIS DAVIES

I beg to move, in Sub-section (3), after the word "or" ["committed or"], to insert the words "at the option of the accused."

The effect of this Amendment would be that the Executive would not have the power to change the venue except at the option of the accused. I had hoped that to-day the Attorney-General would see his way to accept the Amendment. I wish to ask him whether or not, in this connection, he has considered the question of the expense to which the accused will be put when the venue is changed, in order to obtain evidence and secure the attendance of witnesses? In the Committee the right hon. and learned Gentleman used these words:— 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."—[OFFICIAL REPORT, 2nd March, 1915, col. 718.] It is quite true the Attorney-General did not give an undertaking that that would be done, but he did undertake to consider the matter, and, therefore, I formally move my Amendment in order to secure from him a statement as to whether he has been able to meet us on this point.

Mr. MOLTENO

I beg to second the Amendment.

7.0 P.M.

Sir J. SIMON

I am obliged to my hon. Friend for giving me an opportunity of making a statement about this point, which is an important one. The reasons why we must keep the power to change the venue are known to the House—they are the simple grounds of urgency and saving of time. It does not follow that because you change the venue in all cases you will cause witnesses to go greater distances. It is easy to give illustrations where that would not be so, and where by passing over the border of a county you would get sooner to an Assize town. Still there may be cases, and I have made it my business to consult with the authorities in the Department of the Director of Public Prosecutions, and arrangements are made by which, in cases which they will have to conduct under this Bill, in any proper instance the poor prisoner who, owing to this change of venue, is put at a disadvantage to which he would not be put if he were tried in the county where the offence was committed, will be able to ask that a witness whom he needs shall be, if necessary, interviewed for him, and, if necessary, even subpœnaed by the prosecution.

As a matter of fact, that is the thing which is not infrequently done, as some hon. Members know, in an ordinary civil trial. I have never known, since I have been Attorney-General, any charge of murder or any other serious charge being brought against a poor person where, in case of need, the prosecution have not themselves taken care to produce on the spot a person who really ought to be available to testify in the interests of the accused. It is a matter of great importance that we should make it plain to the public that in this country we do not conduct prosecutions on the principle that we ought to try, if possible, to prevent the defendant from calling the evidence that would help to defend him. In a proper case it has always been our position that the prosecution itself will see to it that some necessary witness, even although it is in the interests of the accused, and still more because it is in the interest of the accused, shall be available. That will be done in this case.

Mr. ELLIS DAVIES

I beg to thank the Attorney-General for his statement, and I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Sir RYLAND ADKINS

I beg to move, in Sub-section (5), after the word "War" ["special military emergency arising out of the present War"], to insert the words "by which the Civil Courts are rendered unavailable."

I hope the House will forgive me for taking up time, however short, in moving this Amendment, because this, in the opinion of some of us, is the matter of all others in this Bill about which we feel most strongly, and about which we feel that our duty compels us to make a protest at this, the final stage of the Bill. This is a Clause which enables the Government by Proclamation to abrogate this Bill in time of invasion or any other special military emergency. The Amendment provides that this shall only apply when the Civil Courts are rendered unavailable. There have been throughout these discussions differences of opinion on detail and endeavours made by different Members of the House to extend or restrict the operations of this Bill, but whatever our views are as to the exact scope and extent of the Bill, or the details by which it is to be carried out, this is the very much larger and more important question as to whether the Executive ought to be given power under this or any Bill to use these special methods of justice, or to dispense even with this Bill at a time when the Civil Courts are available and to fall back on the far wider provisions of the Defence of the Realm Act, which is the law at the present time.

There are some of us who believe that the only time when martial law and courts-martial without alternatives are defensible is when the Civil Courts of the realm cannot be used. That has been the unbroken practice of our country in every kind of crisis and on every occasion on which our country has been at war. In times when civil freedom was least developed and least safeguarded the attempt was not made, and certainly was never carried out, to supersede the Civil Courts in time of war when those Courts were available. In spite of that restriction upon military action and upon the policy of the Executive, our country was able to shake itself free from civil discord and to go triumphantly through the wars of the last 200 years, in which, on some occasions, the country was in a position at least as grave—some of us think even graver—than the position in which the country is now.

Sir J. SIMON

made an observation which was inaudible in the Reporters' Gallery.

Sir R. ADKINS

I am quite willing to exchange historical opinions with my right hon. Friend. I would remind him of the time when England had lost command of the sea, when the American rebellion was successful, and when the position of this country was in, both as regards internal discord and external danger, was more serious than in the days of the great war with Napoleon. I know, as well as the right hon. Gentleman, how easy it is to take different views of historical problems. Whatever our views of history may be, to give this power to the Executive to suspend an Act like this and to restore the unmeasured abolition as regards these offences of the Civil Courts of the realm when those Civil Courts are available is an entirely new experiment and departure in the legislation of our country. There are those of us who take the view that as long as the Civil Courts are available we should have resort to them for trying civilians guilty of any crime.

While we accept the restrictions put into this Bill, the least we can ask is that this Bill should be the law of the land throughout this War, under any circumstances. I know there is no hope of this Amendment being accepted, and that the Government have made up their minds while giving us this Bill—we are grateful for the Bill—to take this unheard of power to abrogate it at any moment when in the opinion of the Executive we are invaded, or there is a special military emergency. Those of us who cannot agree to that do not yield to the Government or to any of then supporters in this matter either in our love of our country or in our anxiety to help in every way we can the successful prosecution of this War; but we believe that in this matter, at any rate, the decision of previous generations and the unbroken traditions founded thereon are wiser than the present decision of the Government. We may be wrong. That the future will show. In making this pretest I hope we are not doing anything inconsistent with our view of loyalty to the Government and our due regard for the patriotism of men who are responsible for this in saying that we hope the future will show that the old method was the best, and that this new and evil departure, as we think it, may not form a precedent for any wider divergence from those customs and laws of our country which maintain unimpaired the supremacy of the Civil Courts whenever they were able to sit, and when they were not able to sit rely on that general martial law which in the end is responsible to the country and Parliament itself.

Mr. DENMAN

I beg to second the Amendment.

I hope the Attorney-General will not think me ungrateful for the extent to which he has met many of us in the conduct of this Bill when I express my regret that it was ever introduced. For my own part, I was well content that the Government should have taken the autocratic powers they took last August, and I should be well content that they should preserve them now, believing that the real security is public opinion as expressed through this House, and being quite content with that security. When, however, this Bill is brought before the House we are bound to re-examine the whole position de novo and to scrutinise the position very closely. The time has now come when the principle might be reaffirmed that a British subject shall have the full right of appeal to the Civil Courts so long as the Civil Courts are avaiiable.

Sir J. SIMON

I am sorry that I have to resist the proposal of my hon. Friends. It is a proposal which was presented in very powerful terms during the Committee stage and one which was resisted then with the approval of the Committee. I must point out to my two hon. Friends again what the overwhelming reason is why we should not accept it. In the first place, they seem to think that all difficulties would be solved if you provided that the Amending Bill is to be suspended only if the Civil Courts are not available. There are two obvious comments on that: first, you do not need to put that into this or any other Bill Martial law, if the word is used in its proper sense—that is to say, rough and ready justice, administered as best it may be by soldiers at the very pinch of an emergency; martial law is only law in this sense, that it is the best thing you can have when you have the greatest possible doubt whether you are ever going to save your own lives. You do not need any Act of Parliament to say that.

Secondly, do you think you are going to decide this matter by putting in the words "so long as the Civil Courts are available"? Who is going to decide that they are available? [HON. MEMBERS: "The Executive."] Do my hon. Friends who are claiming full consideration for our constitutional privileges say that what they mean is that the matter should be handed over to the Executive? The last time this question arose was in the middle of the Boer War. What was the result? A Dutchman, or a man with a Dutch name, claimed to be tried by the Civil Court rather than by court-martial. Was it an easy question to decide? It took months. I am not sure that it did not even take more than twelve months. It had to come before the Privy Council here, and it was argued on one side by an eminent legal authority. There was great disputing as to whether or not it was a case for court-martial, and to this day the precise way in which you should try these cases is a matter of very considerable dispute between one man and another. We really must face the fact that we are not living in a time when we can devote all our energies to this doubtless important but none the less highly involved and subtle and delicate discussion. I do not want to enter into any historical argument with my hon. Friend, but I a little deprecate that somewhat complacent way of saying, "Thank goodness we are not in a situation to-day which is to be compared with the situation which existed in the time of Napoleon, and what was found to be sufficient then would necessarily be found to be sufficient now." Let us be sure that we take adequate steps. We shall be forgiven by posterity if the steps we take are more than adequate, but we shall never be, and shall not deserve to be, forgiven if the steps we are taking are not sufficient.

And really when one compares what I dare say was quite accurate, and well to be defended a hundred years ago with what I now propose in this Clause, does my hon. Friend not see how fundamental is the difference? At a time when communication was difficult, and the only moans you had of sending news across the English Channel was to put a man in a sailing vessel and hope he would sail across in time to tell them, I dare say you did not do any harm if you said, "We do not want any special machinery or any rapid organisation which will, if necessary, act in terrorem over those who are acting against our interests." What is that situation compared with the situation when, the moment a newspaper came out, if it was permitted to come out, announcing that particular troops are on the point of leaving a particular town for the front, that message in five minutes can be over in Berlin, and arrangements made for meeting and, it may be, overwhelming those troops on their journey across the sea? I see no resemblance whatever between the two cases. Although I assure my hon. Friends that I am as much attached to these constitutional traditions as they are, and as prepared, on what I think the right occasion, to defend them, whether they are popular or unpopular, as they are, I do not understand how anybody who realises the real nature of the problem we have to face can think it would be satisfactory to alter the Clause in the way now proposed. We must preserve this right. I hope and believe that we shall never have to exercise it, but we must preserve it. Really, it will not do for hon. Members to console themselves with the idea that the Bill we are now amending is one which was passed in a hurry in the first days of the War. It was not.

The Bill we are now amending bears upon its face the date 27th November. It was a Consolidation Bill, and it was passed through this House in November. It passed by general consent, and I believe the House was right in passing it at that time in the form in which it was drawn. But, the time having arrived when we may make certain modifications, let us make some modifications but not forget that the main thing is even now to preserve in case of need that ultimate right, the exercise of that ultimate duty, to take any step, however novel, however far it departs from our traditional constitutional rights, if indeed that step is in the pinch of necessity justified, in order that we may protect the national interest. Therefore while I feel most deeply being parted from hon. Friends of mine on a point of this sort, where I so sincerely sympathise with the spirit which animates their proposal, I feel it my duty to resist it and to ask the House to reject it without the slightest hesitation in the national interest.

Mr. MOLTENO

I do not quite follow the Attorney-General, because he is asking for a very novel power under very novel circumstances, a power which the Executive have never had, to dispense with the law.

Sir J. SIMON

It has had it ever since 27th November, when the hon. Gentleman did not resist it.

Mr. MOLTENO

I do not quite agree. Leave was given to introduce the Bill on 11th August, and it passed its Second and Third Reading.

Sir J. SIMON

Then I correct my statement, and say the Executive has had the power since the early days of August.

Mr. MOLTENO

Which is a great pity. We did not realise it, and advantage was taken of us in not explaining that departure which was then made. The Attorney-General now says that circumstances may be so serious that the Executive ought to have this power. He has already admitted that if the circumstances are so serious the Executive does not need these powers, and that martial law comes into operation automatically, and the military authorities may act upon that. Therefore without explaining why he wants this inferior power he has not explained what sort of conditions would arise under which it could be exercised. I am not very fond of Proclamations because there is no one who supervises them, and you cannot be at all certain that the law will be obeyed after the Proclamations are issued. I do not make that statement unadvisedly, because I find that on a very important occasion the law enjoined by Statute upon the executive Government has not beers followed.

I find that on the 3rd August a Proclamation was issued which really abolished Parliament, because it tells us by authority of the Government that Parliament was not sitting on that day, whereas I am sure Parliament was sitting on that date. Yet here I read from the Proclamation "and whereas Parliament is not sitting," and the object of that was not to comply with the Statute of 1859, which stated that no such Proclamation could be issued unless Parliament had first been notified of the fact. That Statute was re-enjoined time after time right down to the present time. Yet in face of that Statute this Proclamation was issued and our existence was abolished by that Proclamation. I do not feel that we have very much of a safeguard in entrusting this power to the Executive to issue a Proclamation. I would rather make them take the great risk which there is in applying martial law on a grave situation arising in connection with the defence of this country. That is what has always been done in the past.

Yet the Attorney-General has now given us no explanation of why they wish to alter that Act, and what the inferior conditions—because they must be inferior in danger—are for which he is asking for power to abolish the law by Proclamation. It is an enormous extension of the power of the Executive to give them this authority at their own will, and without any reason given or shown in the Statute whatever to clothe them with the power of not complying with a law of this kind. In the Absence of any explanation by the Attorney-General of the sort of occasion on which this is to be applied, I think we are perfectly justified in pressing upon the Government that they should either inform us what those occasions are or what kind of peril they anticipate which is short of that great peril which would authorise them automatically to use martial law, and asking them to accept the Amendment.

Mr. POLLOCK

I wish to say a few words in support of the view which the Attorney-General has presented to the House. Most of us are agreed that the occasion may arise when it would be necessary to suspend the operation of this Clause. Would there be any safeguard or any use in the words which the Mover and Seconder of the Amendment propose to add to the Clause? They would place the Executive in a serious difficulty if ever the occasion arose when they, unhappily, desired to make use of the powers given them by the Clause. They would have to determine whether an emergency had arisen by which the Civil Courts are rendered unavailable. What does that mean? Let us ask the hon. Members to explain themselves. Supposing on a Saturday afternoon, or a Friday, an emergency arises, and supposing the Assizes have recently been held and the Quarter Sessions also, and that there is no Court which is likely to sit for the next two or three days. Is that an occasion of emergency by which the Civil Courts are rendered unavailable, or will they be available in the ordinary course at a later period?

You only ask the Executive to deal with a problem on which many minds might give various opinions. You do not really assist or shackle the powers of the Executive, because the Executive would determine, if they were so minded, that the Civil Courts were rendered unavailable. Someone else might question it and say that in a certain portion of the area there were some Courts which were available; but, after all, the Executive would be the persons who would have to make up their minds. They would have to make an authoritative decision, and the addition of these words, so far really from offering any adequate or real safeguard, only offer an incumbrance to the Executive which I believe it is not the wish of the House to impose, and for that reason I very much hope the House will come to a speedy decision in accordance with the Attorney-General's views.

Question, "That those words be there inserted," put, and negatived.

Amendments made: In Sub-section (6) leave out the words "a foreigner" ["who has married a foreigner"], and insert instead thereof the words "an alien."

At the end of the Clause add, "(8) This Section shall apply in the case of offences committed and persons arrested before as well as after the passing of this Act."—[Sir J. Simon.]

Bill read the third time, and passed.