§ Mr. ASHLEY
I beg to move, "That Item Class II., Vote 4 (Home Office), be reduced by £100."
I rise to draw attention to a matter which the Committee will agree is of considerable importance, namely, the interpretation of the Defence of the Realm Act by the Home Office, and the regulations which have been made by the Home Office under that Act. We all know that these regulations have been made some considerable time, and that under them a substantial number of people have been imprisoned. I would appeal to the Committee to try and exclude from their minds any preconceived ideas on this very important subject, because some of us, who are extremely anxious that the War should be pushed on as fast as possible and with the greatest possible advantage, are inclined to set aside, or minimise, the great constitutional safeguards which, in ordinary peace time, we set great store by, and are, therefore, inclined rather too much to allow the Executive uncurbed powers to do anything they like; whereas, on the other hand, 1237 there are Members who, while they are just as anxious to win the War, yet attach such importance to the constitutional safeguards, that they almost forget that a War is going on, considering that the same constitutional safeguards can be exacted from the Executive as if we were at peace, and therefore are inclined to attach undue importance to constitutional safeguards, and do not realise that some extraordinary powers, not necessarily the extraordinary powers in existence at the present moment, arc necessary if the safety of the' realm is to be looked after.
I do not rise this afternoon to attack the Home Secretary or the Home Office. I gladly recognise that the Home Office under its successive heads, has, on the whole, according to its lights, done its very best to carry out the very difficult duties entrusted to it under the Regulations made under the Defence of the Realm Act. I, myself, and the Home Office are in accord with the object which we seek to attain, but I am afraid we are not in accord as to the means which they have adopted in order to attain these ends. The right hon. Gentleman who will reply for the Home Office this afternoon was not responsible for the Regulations. He was engaged in another sphere of usefulness when the Regulations were made, and I quite conceive it may even be unpalatable to him to have to carry out these Regulations which descended to him from his predecessor. It may be he only carries them out from a sense of loyalty in carrying on the Home Office traditions. What are the Regulations under the Defence of the Realm Act to which I so strongly object? The Defence of the Realm Act gave very wide powers to the Executive—practically unlimited powers—and it enacted that Orders in Council should be issued by the Secretary of State for the Home Department to ensure the safety of the realm. The one I wish particularly to call attention to this afternoon is 14 B. If the Committee will bear with me for a moment, I will read the regulation. It is to the effect thatwhere, on the recommendation of a competent naval or military authority, or of one of the Advisory Committees hereinafter mentioned, it appears to the Secretary of State that for securing the public safety, or for the defence of the realm, it is expedient, in view of the hostile origin or association of any person, that he shall be subjected to such obligations and restrictions as are hereinafter mentioned, the Secretary of State may, by Order, requirehim to remove from or to a certain district, or he may be interned in such place 1238 as may be specified in the Order. It is further provided that such Order shall, in the case of any person who is not a subject of a State at war with His Majesty, include express provision for the due consideration by one of such Advisory Committees of any representations he may make against the Order. What does that amount to? It amounts to this, that if the Secretary of State either has representations made to him by a competent naval or military authority, or an Advisory Committee, or if he can induce a competent naval or military authority or Advisory Committee to suggest to him, he may absolutely, at his will and pleasure, shut up any British subject, and keep him interned until the end of the War. The Advisory Committee, and I say this with the greatest respect for my hon. Friends around me, is pure "eyewash." The Home Secretary is the absolute judge as to who is to be interned. He can release or shut up anybody he likes, and we have here frankly, nakedly and openly, the system of the Bastille, of lettres de cachet, and of the Star Chamber. The extraordinary thing is the personality of the man who made this Order. It was not made by the right hon. Gentleman the present Home Secretary; it was not made by some wicked Tory who wished to pass the National Service Act. It was made by the right hon. Gentleman the Member for Walthamstow, who objected to compelling young men to defend their country, and yet makes a regulation which enabled him to intern, at his own pleasure, any British subject he likes. Surely a more extraordinary situation it is impossible to conceive—the liberty of the subject is to be respected if a man does not wish to defend his country, but the liberty of the subject is not to be respected if the right hon. Gentleman the Member for Walthamstow considers that he ought to be shut up. I hope and trust that the right hon. Gentleman, when he speaks, will be able to explain this seeming discrepancy.
I do not pretend that any of these British subjects, both naturalised and British born, who have been interned are innocent. I know nothing about them. I have not the slightest reason to suppose they do not thoroughly deserve the treatment they have received. That is not the point I wish to raise. Even if they are all guilty, the point is that the Habeas Corpus Act has, by this Regulation, been suspended, and we have substituted for 1239 the tyranny of the King the tyranny of the Home Secretary. I think the House of Commons, and what is more important, the public, ought to realise exactly where we stand. I was yesterday talking to an hon. Member of this House who did not even know that these powers existed, and was not acquainted with what is going on. If hon. Members do not know these things, is it likely the public would know? Under these circumstances I think any hon. Member is justified in bringing this Regulation under the notice of this Committee. What has been done under this Regulation? Seventeen British subjects and sixteen naturalised subjects have been interned. They have been shut up without trial and without any charge made against them, and they have had no counsel to defend them. In fact, they have not been informed of any charge against them.
What is the only safeguard provided under this Regulation? It is the Advisory Committee. If that Committee were a judicial body—a body independent of the Government—I should accept the Advisory Committee with the greatest pleasure, because the members of the Committee are very eminent people—people in whom one can have confidence. They include two of His Majesty's judges and the other members are respected Members of this House, most of them personal friends of my own. I am sure that their decisions have been come to after the greatest deliberation and consideration, and that no substantial injustice has, so far, been done. But the fact is this Advisory Committee is absolutely the servant of the Government. The Members are appointed by the Government and can be dismissed by the Government, and none of their recommendations can be insisted upon if the Government do not choose to accept them. Therefore, when I referred to the appointment of this Committee as pure "eyewash," I think I was absolutely stating the case. I have no wish in any way to impugn the uprightness or ability of the Gentlemen who compose the Committee. But we have a combination here which is most repugnant, in my opinion, to all British ideas of justice. We have the prosecutor and the judge combined in one person. When I make that remark, I hope the Home Secretary will understand that I am not making any personal attack. I am sure that, to the best of his ability, he carries 1240 out the duties of the difficult position he fills, and he would be the last, in his heart of hearts, to maintain that it is a very desirable or possible situation to defend before the House of Commons. It is not right that the same person should be both the prosecutor and the judge in his own case. It will be said, "You have denounced this system which has been created under the regulations made in pursuance of the Defence of the Realm Act. But we are at war, and things which would not be tolerated in time of peace by any Member of this House have now to be tolerated and put up with, and it is necessary that these wide and despotic powers should be given to the Secretary of State in order to prevent any danger to the realm. "That is a very natural thought to pass through hon. Members' minds.
In conclusion, might I suggest to the Committee that the Regulation might be altered, so that true justice might be given to these people and an opportunity of a fair trial given to them, while the realm could be perfectly well safeguarded? I am perfectly willing that the power to arrest on suspicion should remain. I think that is essential. Some hon. Gentlemen opposite may not agree with me, but if they will consider it, they will see that there might be people in this country, British subjects, naturalised or otherwise, whom the authorities know are plotting against their native country, and who, if the ordinary procedure of the law were followed, might do a great deal of mischief before they were laid by the heels. Therefore, I think it is necessary, under the Regulations, that that power should still be vested in the Home Secretary and other competent officials. But when I have made that suggestion I part company with the right hon. Gentleman—perhaps not with him, because I do not know what he will say in his answer, but with the present Regulation, because, when you have laid these persons by the heels, there is nothing to prevent the more normal, the fair, and the more English course of procedure being followed. After you have put him in prison, and prevented him from doing any more harm, I see no reason why you should not tell him what is charged against him, why he should not be given a trial, and why he should not have counsel to defend him, because the bulk of these people, I suppose, are foreigners who do not know the English language.
1241 Then I come to what is to me the most important of all, the tribunal which should try him. I have indicated to the Committee that I have the strongest objection to the Home Secretary being both prosecutor and judge in his own cause. Why should he not agree to these suspects being given a fair trial before judges of the High Court? There can be no suspicion of undue partiality to the enemy on the part of the judges of the High Court, and no suspicion of undue partiality towards the Government on the part of the judges of the High Court. They are independent of the Executive and cannot be removed by the Executive. They can only be removed by a Joint Address from both Houses of Parliament. You would secure by these means the inalienable right of British subjects to a fair trial, you would prevent any arbitrary acts by the Executive, and I cannot see that you would in any way impair any action that ought to be taken to secure the defence of this realm. Before I sit down, may I say I can quite conceive it to be necessary that the judges should be given the power to hold a trial in camera. It might conceivably happen that in the trial some things might come out which would be helpful to the enemy or show how our Secret Service was working. I would give these judges, if they think it right, power to order the continued imprisonment of these people, if they have evidence almost amounting to certainty that they were guilty. I would not make it absolutely necessary that they should be proved to be guilty, but only that there should be a strong suspicion that they were guilty. By these means you would give the man a fair trial, and I cannot conceive that any injustice would be done to anybody in this Kingdom.
§ The SECRETARY of STATE for the HOME DEPARTMENT (Mr Herbert Samuel)
The hon. Member has brought to the attention of the Committee a subject of interest and of importance. It is one in which, I believe, he is entitled to take an hereditary interest, since it was an ancestor of his own who was mainly responsible for the introduction and the passage of the Habeas Corpus Act as long ago as 1679. It is desirable and it would be for the convenience of the Committee that I should at once state the reasons why this Regulation was framed and the procedure that is adopted under it, and describe the action that has been taken. At the outbreak of war there were, of course, large numbers of Germans of German nationality in 1242 this country. Under the common law the Executive has the power, and it exercised that power, of interning those who belong to the country with which we are engaged in war, in order to secure the safety of the State. Not because they had committed offences, not because they had rendered themselves liable to be charged with any crime, but for the sake of security and for the prevention of possible danger, a considerable number of Germans were straightway interned. After the country had had more experience of German methods in this War, public opinion demanded that a wider measure of internment should be adopted, and that course was taken by the Government at that time. A very large number of Germans, after some months of war, were interned not, let me repeat, because they had committed offences, but for the sake of security. It was at once evident, however, that it was impossible to draw any clear, definite line between the German who had retained his German nationality and the German who had acquired British nationality, although in many cases he had not surrendered his German nationality. I have always held the view—it is merely a verbal point—that "nationalisation" would be a much better word to use than "naturalisation" in these cases, because, although a man may change his nation, he does not always thereby change his nature. It is quite clear, from one or two cases which I shall quote to the Committee, that there might be many who, although they had changed their ostensible allegiance, in fact, for all purposes as far as regards the safety and security of the State, ought still to be regarded as Germans. It was felt that it was impossible to leave the Executive unarmed with any powers to deal with these men. Further, there was a considerable number of persons who, although born in this country, were born of German parents, who were brought up in German surroundings, who were frequently educated in Germany, and who were really indistinguishable from the native-born German. It was felt, therefore, with regard to all these cases, that you could not draw a clear line of distinction between them and other German subjects, nor ought you to draw a clear line of distinction in a matter of this kind between a British subject born in England of German parents and a British subject who was a naturalised German.
§ Mr. SAMUEL
I am coming to that later on. Our Naturalisation Acts provide specifically that a person once naturalised shall be placed upon the same footing as a British subject. Further, there was undoubtedly a small number—I am glad to think an exceedingly small number—of British subjects, pure born British subjects, who were untrustworthy and who ought properly to be placed under control. It has been suggested that this matter was never brought to the attention of the House of Commons before the Regulation was made and acted upon. When the Prime Minister, on 13th May, 1915, declared the policy of the Government with regard to the internment of Germans, he stated clearly:In the case of these naturalised aliens, who are in law British subjects (numbering about 8,000), we think the prima facie presumption should be the other way,—that is, that they should not be interned except on cause shown—'but exceptional cases, established to the satisfaction of the advisory body will be specially dealt with. There must be a power of interning in cases of proved necessity of danger."—[OFFICIAL REPORT, 13th May, 1915, col. 1842, Vol. LXXI.]On the 9th June my right hon. Friend and predecessor stated to the House of Commons, in answer to a question put by the hon. Member for the St. Augustine's Division (Mr. R. McNeill)—who drew attention to a number of individual cases of naturalised Germans in this country and of others—Of the remaining six, three are naturalised British subjects, and an Order in Council to cover such cases is being obtained."—[OFFICIAL REPORT, 9th June, 1915, col. 247, Vol. LXXII.]Then on the Home Office Vote, on 17th June, 1915, the whole question was raised, and my right hon. Friend, the then Home Secretary, used this language:When a person is naturalised and given a certificate he is, by the terms of that certificate, assured by the State that henceforward he will stand in the same position as a person who is a natural-born British subject. I think we should be acting very foolishly if we did not remember that we had given that promise. The right way to deal with the matter is to say, 'I do not care whether a man is natural born or naturalised. There is a rule which, in time of war, we must apply, and that rule is, that when it is fairly shown that an individual is dangerous to the State, because he is at large, whether it be because of his hostile origin or because of his hostile associations, then if it is fairly shown, even if he is a British-born subject, he must submit to restraint—He went on to say:Applying that means that we do not in the least deny the advantages of British citizenship to anybody, but we say as a practical matter of importance, in time of war, that we ought to be able in a proper case to deal with persons, even if they are British subjects, by naturalisation or otherwise, provided that they are persons of hostile origin and associations, and that a case is made out for shutting them up, or having some special security in respect of them."—[OFFICIAL REPORT, 17th June, 1915, cols. 851-2, Vol. LXXII.]1244 My right hon. Friend then proceeded to describe the Regulation under which the Home Office is now acting. In the somewhat lengthy Debate that followed not a word was raised in protest or objection to the course which the Government was then pursuing. Although on these various occasions the House of Commons did have its attention drawn to the matter, there was never any objection raised to the policy that was being pursued.
§ Mr. ASHLEY
Would the right hon. Gentleman say whether the House of Commons was definitely told that the Home Secretary, and he alone, was going to try the case?
§ Mr. SAMUEL
As the hon. Member (Mr. Ashley) stated, this Regulation was made by my right hon. and learned Friend (Sir J. Simon), who will speak later in this Debate, but I desire to state now at the outset that I fully identify myself with it. Although, as the hon. Member has been good enough to suggest, it is a distasteful matter to me, and must be to any Home Secretary, to have to deprive any individual of his liberty and especially to bear the heavy weight of responsibility that lies on the incumbent of this office in deciding an individual case, nevertheless one's duty to the State must over ride all sentiments of that kind, and I personally feel quite convinced that powers of this kind are necessary. Whether they are legal or not, whether the particular Regulation is ultra vires or not, is a matter that has to be decided in the Courts and is still sub judice. I should like to mention that no fewer than seven judges of the High Court have, in two cases, unanimously decided that the Regulation is in accordance with the law, and three Lords Justices of the Court of Appeal have similarly held the same view. So that there are ten judges who have already unanimously expressed their opinion as to the legality of this Regulation.
The Committee will desire to learn to what extent this power has been, put into operation. All those who are dealt with must be persons of hostile origin or association. It is not the case that the Home Secretary has power to pick any British subject or alien and whisk him off into internment regardless of circumstances. 1245 The point must be made clear that he is a man of hostile origin or association. There are now in internment in England eight persons of British origin and British nationality. There are seven who are natural-born British subjects of German origin, and there is one natural-born British subject of uncertain origin—possibly French, possibly German. There are six women who are of German birth but have become British by marriage. There are seventeen naturalised Germans, two naturalised Austrians, and twenty-eight who are not British subjects at all—a total of sixty-nine, of whom only eight are British subjects of British origin. In Scotland there are four cases, and in Ireland there are none. The Committee will not be fully acquainted with all the circumstances of the case unless they realise the class of person who is interned under this Regulation, and therefore I will give half a dozen quite typical cases, without mentioning names so as to enable them to be identified, which show the circumstances which have necessitated action under this Regulation. Case A is a young man of military age, British born of German parents. His father, who was a German subject, was repatriated some time ago, and when he was going back to Germany he was detected smuggling a number of letters which he was endeavouring to carry with him. Amongst them was one from his son which included passages stating that he was longing to help the Germans, that his clearest wish was to join the German Army, that he was confident Germany would win the War, and he said in the course of his letter to his friend in Germany that he was a German now and always would be. When they examined him before the authorities he quite frankly and courageously and honestly made the same profession. That man was technically a British subject; but are we ready to say that he ought to be treated by the Government in time of War as though he were a loyal British subject, and that the Executive ought not to have power to deal with a man of that character?
§ Mr. ASHLEY
I suggested that when he was brought up before these judges and if his guilt was unanswerably proved, if the suspicion was so strong against him as to amount to absolute certainty that his sympathies were against this country, he should remain interned.
§ Mr. SAMUEL
I am not a lawyer, nor is the hon. Member, but I doubt whether any lawyer would hold that it was possible to frame any indictment on the strength of a letter of that character. On what charge would you bring him before the judges? Let me take the next case. Another young man, also British born, also of German parents, who was educated in Germany from the age of seven to fourteen and openly professes pro-German sentiments. He made no secret of it that if called up under the Military Service Act he would refuse to fight, and if he could get to Germany he would join their army. Owing to his openly expressed pro-German sentiments the workmen of the place where he was employed refused to work with him. He was unable to get other employment. His father was interned, and his mother and four sisters had all returned to Germany. This young man, on account of the sentiments he had expressed, and of his very German name, was unable to obtain employment, was destitute, and came to the authorities and asked to be interned. Case C was the daughter of a German officer. She has two brothers who are officers now serving in the German Army. She is British because she is married to an Englishman. Ever since the War began she has carried on correspondence with her relatives in Germany which contains quite freely expressions of the most pronounced pro-German sentiments. She had to stay with her in her house, and afterwards corresponded on very friendly terms with a person who was afterwards prosecuted as a German spy, convicted and sentenced to a long term of imprisonment. Case D was another German woman who acquired British nationality by marriage. She was herself prosecuted for espionage—for endeavouring to communicate information which she had collected as to the manufacture of guns, shells, and other munitions of war in the district in which she resided. She was sentenced to six months imprisonment. It was not a very grave case—she was a very unskilled spy—but it has been discovered that she was in touch with a German agent, and it is certainly not regarded as safe to leave her at large with the freedom that attaches to a loyal British subject. Case E is a person of pure British birth, one of the very few, but a man who has frequently expressed anti-British sentiments. He resided for some months after the out 1247 break of the War in a foreign capital, where he almost daily visited the head of the German Secret Service, and lived with him on terms of the closest intimacy. He paid a visit to England meantime, returning again and visiting the person, who is well known to be the head of the German Secret Service there. When he came back to England he was arrested and interned. There was insufficient evidence to level any charge on which he could be convicted, but it would not be safe to leave him at large or permit him to go abroad. Case F was another person of British birth. Four years before the War he was quite clearly guilty of espionage. He went to live in one dockyard town after another. He was in close touch with a German agent and was prosecuted as a spy. It was found that he was insane and he was committed to a lunatic asylum; but he has recovered his sanity. He disappeared from view but was found not long ago under another name, employed in the works of a contractor for explosives, and there was evidence, though not proof, that he was again in correspondence with German agents. He is a pure-bred British subject.
What course is to be taken with regard to those persons? It is not the case that they are confined under a mere Home Secretary's lettre de cachet. Each case has to be dealt with in the first place by the competent naval or military authority, and I should like to bear testimony to the fact, after now some little experience, that these departments of the War Office and the Admiralty are highly competent, not merely in legal phrase but in fact, careful and discriminating. The cases then come to the Home Office, where they are examined, and each is considered by the Home Secretary personally. Then the person who is interned, if an Order for internment is made, is formally advised that he has a right to refer his case for the consideration of the Advisory Committee, and the vast majority of them have done so. That Committee consists of six gentlemen—Mr. Justice Sankey, Mr. Justice Younger, Colonel Lockwood, Mr. Maclean, Mr. Baldwin, and Mr. Mooney. I believe they are almost invariably present at each meeting, and at every meeting both the judges are present to consider the cases.
§ Mr. SAMUEL
My hon. Friend is considering an entirely different Regulation. Those are ordinary cases of Germans who are to be exempted from internment. That is different altogether. These cases are given most prolonged and patient hearing. The person interned is always heard in person if he desires to be so heard, which is usually the case. He is able to call witnesses. If there is any element of doubt, or if any further inquiry is necessary, the Committee nearly always adjourns the case—sometimes more than once—and if they desire to make further inquiries they do so through their own officers, and those inquiries are frequently of a very exhaustive character.
§ Mr. MARSHALL
In these cases are they represented by counsel or do they have legal advice before the Committee?
§ Mr. SAMUEL
The Committee has determined its own procedure. It does not hear counsel or anyone employed for the purpose of advocacy, but it frequently hears solicitors, and the people are always able to get legal advice, if they so desire, as to the presentation of their case. It is said they do not know what charge is made against them. The examination which takes place in the first instance before they are interned, as a rule, lets them know pretty well what it is they are suspected of. When they come before the Committee the judge presides at the examination of the suspected person, and in the course of that examination shows to the individual beyond the possibility of doubt what the authorities have in mind as the cause of his internment. But I agree that as a matter of form it would be better that they should have clearly written on a piece of paper and in general terms the charge which is made against them, and after consultation with the two judges who serve upon the Committee, and after consultation with the military authorities concerned, I propose to make arrangements that in all cases, as soon as the Order for the internment of the person is issued, a statement shall be furnished him showing on what grounds that internment Order is made. The advice of the Committee has always been taken where it recommends release. I think there was one case in my predecessor's time when the Committee took a somewhat more severe view than was taken by the Home Office. In that case the more lenient view was adopted. Always where release is suggested the advice of the 1249 Committee is taken. At the same time I do not wish the Committee to imagine that I regard the Advisory Committee as having the primary responsibility in the matter. The responsibility for the action taken quite definitely rests upon the Home Secretary and he is free either to accept or to refuse the advice of the Committee. It would be a very exceptional case in which he would not accept the recommendation of so highly competent a body as that the constitution of which I have just stated to the House.
§ Sir JOHN JARDINE
While this inquiry is going on, is the person in any kind of custody or is he on bail, or what is his position as regards freedom until the matter is definitely settled by the Advisory Committee?
§ Mr. SAMUEL
As a rule he is interned first; then he is brought before the Committee at its next sitting. But there are cases in which the Home Secretary desires the advice of the Committee before finally deciding whether a man should be interned or not. That is the procedure that is followed in these cases. The hon. Member thinks, and other hon. Members apparently hold the view, that the right course would be to prosecute these persons, but I have pointed out that these are not cases in which any indictment could be drawn. If you take one by one the six cases which I have mentioned it will at once be apparent that legal proceeding's in the majority, or in all these cases, could not be taken with any real hope of success. Further, there are cases in which, while a prosecution might be possible if witnesses were available, the witnesses are out of the country and could not be brought here. There are one or two others in which the authorities who are engaged in the difficult work of counter-espionage would far rather that the individual should escape internment than that the source of their information should be revealed. It will be clear to every member of the Committee that the source of information must be in these cases frequently of a most secret character, and to bring the witnesses before a tribunal would destroy all possibility of their future usefulness. Lastly, on this branch of the subject, let me point out that if some of these individuals could be prosecuted successfully their lot would be far harder than it now is. If we were to take proceedings in some of these cases, as a rule they would escape punishment, because the Courts would hold, and rightly 1250 hold, that you must have the clearest possible proof before exposing a person to the very heavy penalties which such an offence would bring; but where they were found guilty, instead of being interned under somewhat easy conditions during the course of the "War, several of these individuals would probably be sentenced to long terms of penal servitude.
If they cannot be prosecuted under the ordinary civil law, what other powers, might be conferred upon the Executive to deal with these cases? In other countries on the Continent they deal with cases of this kind under martial law, or under what is called a state of siege. Some exceptional powers are customary in every country in time of war to deal with enemies within the State, whether of alien birth or of national birth. Parliament frequently in times of danger and stress has given almost unlimited powers to the Executive by suspending the Habeas Corpus Act by Act of Parliament. That has been done eleven times in Great Britain and eight times in Ireland. It has been done also in the United States, where the system of jurisprudence is not dissimilar to our own. We consider that the adoption of any kind of general system of martial law or the suspension of the Habeas Corpus Act would be going far beyond the needs of the case, and would be adopting an excessive remedy for the evil with which we have to deal. There is one other alternative, and only one, and that is, to let loose these sixty-nine men and women to carry on their activities as they desire. I am sure there is no member of the Committee who would think that in time of war we must wait until a person has committed an offence which can be proved before he is kept under lock and key. We cannot wait for a proved offence and not deal with a plain danger. In war, of course, you must run many risks; but surely you ought not to run risks which are avoidable, and when we consider what the German methods are, and what has been done in the interests of the German cause in the United States and Canada, I think the Committee will agree that the precautions which have been taken are not excessive.
Suppose this action had not been taken by my predecessor and the Government; and suppose—not an impossible supposition either—that some conspiracy had been hatched in this country by naturalised or natural-born British subjects of German origin or sympathies; and suppose that 1251 conspiracy had taken effect and some outrages had been committed. Straightway the Government would have been blamed in this House and throughout the country for leaving it too late before taking action. All the world would have said, "You have been warned again and again that you had dangerous persons in your midst; you knew they were there, and yet because the ordinary processes of law would not enable you to deal with them effectively you supinely sat still and take no steps in regard to them." But when we do take steps, and when we do forestal the evil, rather than wait for it and punish afterwards, then in this House we are criticised for impairing the liberty of the subject. Hon. Members who take that view in this House, and other people outside, make an appeal to the ancient sentiment of liberty which is one of the most precious of our national characteristics. It would, indeed, be a disaster if there were any weakening in that sentiment. It is true that the tendency of autocracy in all ages and in all countries has been to endeavour to meet criticism or opposition of the powers that be by imprisoning or executing the critics or opponents. Against that democracy has always had to fight, and has fought successfully in this country, and now the hon. Member seeks to bring to bear all this force of liberty-loving sentiment, accumulated through the centuries, to deal with a case which is of an entirely different character.
There is no question here of imprisoning men contrary to the law. It is not the case dealt with under Magna Charta, and the other constitutional instruments, of imprisoning persons not in accordance with the law. This action is taken authorised under an Order in Council by an Act of Parliament, and has been held by the judges, so far, to be lawful. Nor is this a case in which the Government seeks to use its powers to suppress opposition to itself, or criticism of itself, such as we find dealt with in the course of our constitutional history. These are not domestic opponents of the Government. They are persons of hostile origin or hostile associations, who are a danger to the realm in the state of war in which we find ourselves. It is not I have before remarked, in which action is taken by the fiat of a Minister. We have this Committee, consisting of two judges and four unofficial Members of this House, which has brought before it these cases, and which would cer- 1252 tainly check any attempt to break the law and any abuse of authority that an evil-minded Minister sought to commit under cover of secrecy and darkness. These are the reasons why we regard this measure as necessary. The Executive, which is responsible after all for the peace and safety of this realm in the grave conditions in which we now find ourselves, must not be left unarmed in time of peril to deal with cases such as those I have described, and this power, moderately and carefully used, will, I think, be regarded by the Committee as necessary for the safety of the State.
§ Mr. ASHLEY
Could the right hon. Gentleman answer one of the questions which I put to him, and which I regard as of great importance, and that is, why he cannot consent to hand over to the judges of the High Court the trial of the case instead of keeping it in his own hands, thereby making himself both prosecutor and judge in his own case?
§ Mr. SAMUEL
Because of the difficulty of framing legal procedings and of formulating a specific charge which might be proceeded upon and upon which the persons could be found guilty.
§ Mr. ANDERSON
I think it will be admitted that the Home Secretary has made a very able defence and I think we shall also agree that in time of war in any country there must be national safeguards and additional restrictions. That is, I think, common ground. Where I differ from the statement of the right hon. Gentleman is as to the procedure which has been followed in this case, and I think the steps which have been taken go very far indeed to sweep away the protection of Acts like the Habeas Corpus Act. I think on that point there is no doubt at all. I suppose that it is necessary in war time that the Government must be responsible for stringency in regard to the defence of the realm, but I think that the very worst way in which you can carry that out is by legislation of a panic character. We have had panic legislation pushed through this House more than once. Some of the first Defence of the Realm Acts gave such unlimited powers that the Members of the House of Lords had to tone down that legislation. Nobody will say that the Members of the House of Lords were less concerned with the safety of the realm than the Members of the House of Commons, but they believed that the legislalation was going beyond what was necessary and was being done in a wrong way. 1253 Exactly the same thing is true of an Act like the original Munitions Act, which went far beyond what was desired and what was necessary. One of the most objectionable features of legislation of this character is that the House of Commons passes more or less a skeleton measure and allows others outside to fill up the measure in any way they like. The House of Commons gives practically a blank cheque to outside bodies like these Advisory Committees, and powers which ought to be vested in this House and in the Law Courts and the judges of this country are passed on to bodies set up over which we have no real effective control. That, I think, is a very important matter which demands attention. The cases that were mentioned by the Home Secretary were very significant. In some of the cases there were actual letters proving that the persons concerned were in active sympathy with the enemy and were writing to people in enemy countries and expressing the view that they would like to be over there fighting for those countries. Those letters could have been produced as evidence if the tribunal had been a tribunal of judges of this country.
§ Mr. ANDERSON
Surely it is clear. If it is necessary to get additional Regulations for the Defence of the Realm, that is one matter. Surely to be resident in this country and to show that you are actively in sympathy with the enemy of this country, and that you desire the enemy of this country to win, and that you would gladly do anything in your power to assist the enemy of this country to win, is a matter which could be dealt with by Regulation of this House. If you are going to give a vague power of this kind to a Committee, why cannot it be done by the House of Commons, and why cannot Regulations of that kind be drafted by the House of Commons?
§ The CHAIRMAN
The hon. Member is now criticising the Act of Parliament. He is quite entitled to criticise the Home Secretary for the Regulations which are made, but he is not entitled to criticise the Act of Parliament.
§ 5.0 P.M.
§ Mr. ANDERSON
I am sorry that I took a very wide line, but it is necessary to take a very wide sweep in order to explain the whole matter, and I was trying to explain what might be done as an alternative to what has been done. The various phrases that were quoted by the Home Secretary 1254 included such matters as this. There must be in the cases of these British-born subjects the proved necessity of dealing with them, and it must be clearly shown so on and so forth, and in all these cases they have no real chance of legal proceedings. They have had up to the present no chance of being defended by counsel. Many of those people could only put their case in a very poor way. Up to the present, in dealing with all those cases, they have not had even a written statement of the charge against them. Even the Home Secretary now admits that that would be a very necessary and desirable thing, and at least to that extent what has been urged both in and out of this House is going to be done. The very worst thing which we can do is to use the dangers of the War for the purpose of sweeping away those things which have been traditional in English history and English legal procedure. In "Hallam's Constitutional History" he says:—The Writ—'that is of Habeas Corpus'—is rendered more actively remedial by the Statue of Charles II. but, founded upon the old basis of Magna Charter, it is the principal bulwark of English liberty, and if even temporary circumstances or the doubtful plea of political necessity should lead men to look on its denial with apathy, the most distinguished characteristics of our Constitution will be effaced.I believe that to a very considerable extent is being done under the Advisory Committee. We have been told the lines on which the Committee is formed. On what rules is evidence brought before it? Is it on ordinary legal lines? Is it not the case that in practically every case these trials are held behind closed doors? There no doubt would be cases where it would not be advisable in the national interest that the trials should be public, lest matters might go forward that ought not to be publicly reported, but, where it is possible to have the right of public trial, public trial should be granted. It comes back to this in the end, that, despite the so-called safeguard of the Advisory Committee, the man who is supreme in this matter is the right hon. Gentleman the Home Secretary. He is the judge and jury. He can try the people and pass sentence upon them. The whole matter is in his hands, and he is prosecuting counsel at the same time. I do suggest that, that is an unsatisfactory arrangement, even from the standpoint of the Home Secretary himself. The Home Secretary ought not to be asked to undertake an obligation of this character. Therefore, while I entirely agree that you have 1255 got to have additional restrictions and safeguards at this time, the tribunal ought to be a tribunal whose impartiality is beyond doubt and dispute. I believe that that can be done. Legislation by legislative order is open to very grave abuse, and I would suggest that, when amending legislation is possible, we should modify that. Also I would say that while you still attach—as you ought to attach—supreme importance to seeing that there is no danger to the Realm, you should keep freedom, constitutional liberty at the same time safe at home.
§ Colonel LOCKWOOD
I do not like to intervene, but as a member of the Committee, may I say for the information of this Committee that the man or woman accused invariably knows what the accusation is—hostile association, and so on?
§ Mr. TREVELYAN
In the course of the very able speech by the Home Secretary just now I think that he hardly really met the essential point of the hon. Member for Blackpool (Mr. Ashley) who moved the reduction. After all, what has been said is not that injustice has necessarily been done to any person under this Regulation by the action of the Home Secretary, but that you have no security that injustice has not been done, and absolutely no security that great injustice will be done in the future. It is no answer to say that the right hon. Gentleman the Home Secretary is, as we all know, a reasonable man himself, or that the Committee, all of whom we know, are reasonable men. What we complain of is that these ordinary safeguards for British safety have been removed, and that cases may occur in which injustice is perpetuated, even by accident, by my right hon. Friend and by this Committee, and that then these citizens will not have the ordinary recourse to the ordinary tribunals. Nor does the hon. Gentleman who moved this reduction say that anything illegal has been done by the Government. That is not the point. What happened when this legislation was passed in the House of Commons I am quite certain was this: We had long Debates as to whether a British subject in all circumstances should have an appeal to the civil tribunal, and the House of Commons was practically assured that in all circumstances he would. We never had the smallest suspicion that all the superior executive power was going to be given to the Home Secretary to imprison certain classes of citizens.
On a point of Order. Is it competent for this Committee to upset an Act of Parliament? Either the legislation is right or it is not.
§ The CHAIRMAN
I have ruled a few minutes ago that it was not in order, on Supply, to criticise or ask for the amendment or alteration of an Act of Parliament, but Regulations made under the Act of course are a proper subject for reference.
§ Mr. TREVELYAN
What I have said is that when this Act was passed it was commonly understood that all British subjects were to have legal access to the Courts. I do not say that the Government are acting illegally. In all probability they are not. The case has not yet been decided. But it is not good enough for the Government to pass an Act on the clear understanding that there shall be recourse to the Civil Courts in last resort for all British citizens, and then to make Regulations under an Act of Parliament, which may be quite legal, which make that resort in the end impossible. The safeguards which are offered for certain classes of British citizens now are the reasonableness and good will of the Home Secretary, and the reasonableness of the tribunal. There is no resort to the Courts. That is what I complain of. The right hon. Gentleman suggests that this power is necessarily confined to certain very small sections of the community. He laid great emphasis on the fact that they were citizens of hostile origin or association What does that mean? I do not think that there has been any legal interpretation of these words. The fact is that if the right hon. Gentleman and the Committee will say that they have hostile associations, they thereby have hostile associations, and become liable to be permanently imprisoned without any legal redress. The people who decide whether they have hostile associations are the right hon. Gentleman and this Committee.
§ Mr. TREVELYAN
The right hon. Gentleman decides whether they have hostile associations or not. What does "a man having hostile associations" mean, or what may it mean? As far as I can see the mayors who were feasted by German corporations before the War may be meant It may mean almost anything which the right hon. Gentleman chooses to interpret it as meaning. I dare say that he is going 1257 to be reasonable in his interpretation, but there may be cases in which he makes a mistake, and in which British citizens with no hostile associations may be subject to this most unjust detention. I will go a little further. If the right hon. Gentleman has been able to make this Regulation, which he defends by saying that those under it are to be of hostile orign or association, I want to ask him this question quite definitely. Does the right hon. Gentleman not think that if he can do that he can also make a Regultaion leaving out the words "hostile origin or association," and so subject all British citizens under a new Regulation to that absence of final legal resort to the Courts which under this Regulation is applied to one class of citizens? As far as I can see there is no reason why we should not do that.
§ The ATTORNEY-GENERAL (Sir F. Smith)
was understood to say: The Executive decides. It decided in this case.
§ Mr. TREVELYAN
That is to say that the House of Commons, having never in tended under this Act that British citizens of any kind shall not have a final resort to the Courts, now find themselves in this position, that they are at the mercy in these cases of the right hon. Gentleman or whoever may be Home Secretary, and then that the decision as to whether all British citizens—
§ The CHAIRMAN
The hon. Member now is either criticising a point which is sub judice or else he is criticising the Home Secretary for something that he has not done but that he might do.
§ Mr. TREVELYAN
I think that I have, at any rate, made clear to the House what the danger is to the individual even under existing Regulations, and how those Regulations might possibly be extended. What we complain of is that though we have every reason to believe that my right hon. Friend is reasonable, we do not like British liberty to be dependent on the reasonableness of any one man or of any few men. We prefer that it should depend on the user of legal resort which has existed for all time except when, as my right hon. Friend points out, Parliament has deliberately suspended the Habeas Corpus Act. That is not the case to-day. What we are afraid of is the further extension by the Government, under the powers which they now have, of the circumscription of the liberty of the subject, and I think it most 1258 unfortunate that the Government are not prepared to make some concession to my hon. Friend to secure the liberty of the subject.
§ Sir JOHN SIMON
The Regulation under discussion this afternoon is a Regulation made by the Home Office at a time when I had the responsibility of answering for that Department in this House, and perhaps the Committee will allow me to make one or two observations in the Debate. Home Secretaries come and go, but the Home Office goes on for ever; and I am not surprised to find that the view which is taken by that Department, under its present chief, is the view which was held not as the result of some sudden spasmodic hasty action, but as the result of a great deal of care and deliberation on this matter when the Regulation was made. Something has been said this afternoon about Habeas Corpus, and I am not quite clear whether some of the speeches that have been made in criticism of this Regulation are made from the point of view of law or of policy. It is very necessary that we should distinguish between these two things. So far as the legal question is concerned the legality of this particular Regulation has already been discussed in the Courts, as we have been told. A great number of judges both in the High Court and the Court of Appeal have expressed the opinion that the Regulation is perfectly legal, and the matter, if it has to be further considered, will have to be decided in the House of Lords. Therefore, it is quite wrong that we should discuss the legality of the matter. The only observation that I will make under that head is that it is a complete mistake to suppose that the legality or the illegality of this business can be judged simply by looking at the Regulations. The Regulation, standing by itself, of course has no validity whatever. The Regulation is only a good authority of what is done if it is justified by the terms of the Act of Parliament which has been carried through this House.
It is said that this is interfering with Habeas Corpus. I was a little surprised to hear my right hon. Friend the Home Secretary speak in terms quite so sweeping of what was in fact secured by legislation in the past when. Habeas Corpus was, as it has been popularly described, suspended. Historically, I think it is quite a mistake to suppose that when an Act is passed for suspension of Habeas Corpus— 1259 as, for instance, was done by Pitt in the course of the wars at the end of the eighteenth century, and was renewed year after year—it abolished the writ of Habeas Corpus for all British subjects, as though the Act of Habeas Corpus had never been passed. The suspension of the Habeas Corpus Act was nothing more than this, that it provided that for twelve months a man arrested by the Executive on a charge of high treason could not compel the authorities either to release him or to bring him to trial. It left Habeas Corpus always to operate just the same for everybody else—just the same for persons detained by the authorities on any charge of crime—and, so far as I recollect, it was strictly limited to the man who, arrested on a charge of high treason, could not claim a release because they did not bring him to trial within the twelve months. Ireland has had more severe and more frequent suspensions of Habeas Corpus, but experience has shown, I think, how jealous, and rightly jealous, this country has always been of anything that savours of interference with personal liberty. Whatever view may be taken of the matter by anybody in this House or out of it, no one in the least complains or expresses or feels any sort of resentment because this question is raised here by some who, rightly and naturally, are anxious to see that British liberties are not interfered with. This is the right place to raise the question; and whether my hon. Friends are right or wrong in their criticism—I think their criticism is not quite right—the spirit which moves that criticism is a spirit which shows that our institutions are really worthy of being enjoyed by a free people.
Another thing about Habeas Corpus. It is a complete mistake to suppose that Habeas Corpus is the privilege of the British subject, of a man who is the subject of the British Crown. That is not the least true. The writ of Habeas Corpus is available for all persons within the jurisdiction of the British Court, which is quite a different thing. In the actual experience of the Court, nine times out of ten, when there is an application for a writ of Habeas Corpus, it is an application, not on behalf of a British subject at all, but on behalf of some foreigner in this country, the ordinary case being where a foreigner is arrested on the charge of being a fugitive 1260 from justice; he is about to be handed over to the authorities in his own country, but, before he goes, he sues out a writ of Habeas Corpus in order to test whether it is right that he should be handed over. It is quite a mistake to suppose that Habeas Corpus is the privilege of the British subject or of a man naturalised as an Englishman. I hope the Committee will excuse my mentioning those points. They seem to have a bearing when we try really to see how much force and substance there is in the complaint that this is an interference with the traditional rights of British subjects.
I come to the matter of policy. I am not sure that the hon. Gentleman who raised this matter, in so temperate and careful a speech, agreed in all respects with my hon. Friend (Mr. Trevelyan) who spoke so feelingly just now. The hon. Gentleman who raised the matter stated quite frankly that in time of war we must be prepared to forego some portion of the full legal protection which exists in time of peace. I am not quite sure that my hon. Friend who has just spoken indicated a similar view.
§ Sir J. SIMON
Then we are all at one. Therefore on the point of policy we start with this, that in time of war the law in relation to this matter will not be the same as it is in time of peace. The next thing is this: Nobody disputes that the subjects of an enemy State in this country—and they were in this country in great numbers at the beginning of the War—are to be interned in proper cases by order of the Executive without trial and without writ of Habeas Corpus. No one disputes that, and I do not think it has ever been disputed; indeed, it is an indisputable proposition. We, therefore, reach this point: Can it be that, after you have admitted that Regulations must be different in time of war, and after you concede that everybody who is actually a subject of an enemy State is liable to be interned without trial, there is nothing which can be properly done short of putting all other persons upon their trial, with the necessary consequence that in the case of the person prosecuted the strictest laws of evidence would have to be observed, and the jury would not convict unless there was seen to be sufficient and proper cause? It seems to me that it would be absurd to say that a German-Swiss, who is perfectly well known by the authorities to be an agent 1261 of the enemy, or a Dutchman, who is in constant communication with the enemy, or the member of a German family who has recently passed to the United States of America and becomes naturalised there, runs in one category, while, on the other hand, the person who remains a subject of the enemy, by common consent, may be interned without trial. Therefore I submit to the Committee that we have to approach this from the point of view of recognising that for persons who are not enemy subjects you must have in war such a Regulation as this, not of the technical kind requiring strict proof, but some proper Regulation to secure the safety of the State.
Then there is another criticism made by my hon. Friend—that the House of Commons did not understand all this, and that the country did not understand it. He will forgive me if I say that, really, if the House of Commons did not understand it, it is entirely the fault of the House of Commons. I quite agree that, if in this matter we are simply to rely upon the action taken by the House of Commons on the first day of the War—a day which I do not think any one Member of this House will forget as long as he lives—I quite agree that if we were to draw up a whole schedule of Regulations on an Act of Parliament hastily passed by common consent of the House, under pressure of terrible anxiety and terrible urgency, it would not be giving full and fair information to the House of Commons. That is not the position at all. Criticism and complaint were constantly made in this House month after month, after the War began, that the Home Office had not got effective machinery for dealing with those suspected persons who were not, in fact, enemy subjects. I apologise very much for referring to anything which I have myself said on the Home Office Vote, but, as the Home Secretary has reminded the House, I made some remarks about this question, and I will read one or two passages, in addition to that which has already been read, which show that those hon. Members, the hon. Member for Salford and the hon. Member for Elland, could not have been present, or that they did not attend to what was said in respect to the Regulation. This is what I ventured to say on the 17th June, 1915:—One of the first thing's that was done, when I took over my new duties as Home Secretary, was to devise an amendment in the Defence of the Realm Regulations, by which it may be possible with proper safeguards—of course it should not be done without the most careful safeguards—that a British citizen may be required 1262 to live in a particular place, or to notify his movements, or submit to other necessary conditions for the safety of the State. What are the safeguards? In the first place, such a person must be reported to the Secretary of State, either by the naval or military authorities or by one of these Advisory Committees of which I have already spoken.I pause there with the greatest satisfaction and sincerity to refer to what my successor said as to the efficiency, combined with extreme care and sense of justice, with which the Department of the War Office deals with this matter, and the way in which it has conducted these proceedings ever since the War began. I went on to say:In the second place, I thought it right that the Home Secretary, who is answerable in this House, should not be able to shield himself in connection with these acts behind the recommendation of the naval or military authorities. I thought it plainly right, in the interests of British subjects, that I should have to answer if an unreasonable use was made of this most exceptional power. Therefore, the Regulation is so drawn as to secure that. In the third place, any Order that is made under these new Regulations can only be made for the defence of the realm and the security of the public from danger, and it must contain express provision which will secure that the person to be dealt with shall have any representation he wants to make, as to any mistake having been made, or as to any other matter in his favour, fully and properly considered.Really, I think, language could not more clearly describe what this Regulation is. And having made that statement in the month of June last in the House of Commons, from that day to this, so far as I know, the matter has not been challenged until in the course of last week; and now some of my hon. Friends, whose motives and desires I most fully recognise, seem to think that they have been trapped into this. The Regulation was very fully discussed. The number of cases to which the Regulation applies is extremely limited, and for the life of me I cannot see how you are going to secure the safety of the State, unless you have some such power as that, surrounded by such safeguards as are possible. One other matter. The hon. Member who raised this question said fairly enough that, of course, some such power must exist, but he suggested an improvement of the machinery or methods. He asked why these people should not be tried by a judge—he suggested more than one, but so far as I know, they are generally only tried by one.
§ Sir J. SIMON
I understood the hon. Gentleman to say why should they not be tried by a judge or judges in a Court if necessary, and that after the judge has tried them on some accusation of crime, 1263 even though the judge comes to the conclusion it is not proved, that the judge might still order that the person should be imprisoned. I venture to think that that is a far more dangerous proposal, if we desire to preserve the traditions of British justice, than anything which is contained in these Regulations. I dislike extremely the idea that you are going to use our strict judicial forms and at the same time are going to dispense with the conditions which are laid down before a man is subject to any punishment under those forms. To pretend to have a trial on the understanding that whether he is found guilty or not he is going to be imprisoned does seem to me to be a trial out of "Alice in Wonderland." If you are going to have resort to strict criminal jurisprudence, you must take the consequences. You must tell a man, "Here is an accusation. It is for the prosecution to prove the case. You may stand still and do nothing, and give no evidence or offer no defence, and the judge will see that unless the case is proved you will be free the moment the trial is over." That is justice.
§ Mr. ASHLEY
What I proposed was that a separate person should decide the case from the person who interned the man. At the present moment the Home Secretary is both prosecutor and judge. What I am trying to secure is to have two separate entities to deal with these two matters.
§ Sir J. SIMON
I had appreciated the point. It has been urged, I think, by the hon. Gentleman and by others that you really ought to have something like a trial through judicial officers, in which, even though the case is not made out, the judge who presides might sentence the man to a terms of imprisonment. I object to that in toto. It appears to me that there is nothing more dangerous than for you to suggest that judges administering law in a Criminal Court, though the case is not made out, should none the less be able to punish the prisoner. There is then the other suggestion which the hon. Gentleman has made. Is he not wrong when he says that the Home Secretary is both accuser and judge. He is using language which is perfectly appropriate if you are dealing with accusations of crime, and punishment for crime, but which does not seem to me to be at all appropriate when you are dealing with the perfectly separate question, namely, whether a man 1264 who may have committed no crime should in the interests of the State be put under some surveillance by the State, which I agree is a most dangerous thing to do, and a thing which the House of Commons is entitled to watch. But the two questions are not the same. I do not think in this matter the Home Secretary is prosecutor, and I do not think that in the full sense of the term he is judge. So far from being prosecutor, if the hon. Member will look at the Regulations he will find that no case can be so much as started under these Regulations on the instigation of the Home Secretary at all unless the military authority, the secret service authorities of the Foreign Office, or the corresponding department in the Admiralty, or the Advisory Committee, of which the Home Secretary is not a Member—
§ Sir J. SIMON
It is no good saying that a man is prosecutor because he appoints the Advisory Committee, but even the hon. Gentleman would be wrong, because the Home Secretary does not appoint either the military authority or the naval authority. The point of the matter is this, that different persons who have this kind of work to do may in the course of the discharge of their duty come across some cases of which they consider the civil authority ought to be informed, and they bring the matter to the Home Office, but it does not begin there. Therefore the Home Secretary is not prosecutor, and neither is he in the proper sense of the term the judge. What he does is this, as about many other matters which have to do with the detention or liberation of citizens, he exercises a discretion which has, of course, to be exercised fairly, but it is not a discretion similar to a sentence by a judge, and it has no relation to it. As he has told us, there has been no case in which the Home Secretary has ever departed from the advice of the Advisory Committee, if the Committee has advised that a man should be released. There was a case in my time in which I did take a rather different view from that of the Committee. Having in fact found further information about the case, and after seeing the Committee we were agreed, I think, that it was right that a particular individual should be released. I do not believe that anybody who will consider the realities of this situation will doubt that if it were hereafter determined 1265 that Regulation 14 (b) does not authorise the detention of these people, it would not be necessary for the House of Commons instantly to legislate on the subject. It is really inconceivable that we should suddenly release into our midst a limited number of persons every one of whom is the centre of the very gravest suspicion by the authorities, and every one of whom has been called before a perfectly independent body presided over by two judges, and every one of whom, in spite of any explanation he has made, has been thought by the authorities a person whom it is not safe to leave at liberty. I regret that these things have to happen; it is one of the misfortunes of war, but I suggest that it would be really wrong, under some impression that this is suspending Habeas Corpus, or that this is the appointment of the Home Secretary to be prosecutor and judge of any British subject, to take a wrong view of such a matter. The hon. Gentleman said he could not understand how I take the view I do about the proceedings of the authorities under the Military Service Act and justify this. This is the distinction: I want to see the law observed, and as long as this is the law the only question for the House of Commons is whether as a matter of policy it is wise. I suggest it is wise for reasons which I have mentioned, and I hope that the House will accept the explanation of the right hon. Gentleman.
§ Mr. STUART-WORTLEY
We run some risk, I think, of missing some fundamental facts. This is not a case of arriving at penal decisions, and it is not so much a question of law as of policy. It is policy, not perhaps general policy, but general policy as applied to cases arising out of the overmastering exigencies of national defence. To arrive at decisions in these cases we have to consider not retributive but preventive measures. In all these cases it is not really the past acts of individuals for which it is sought to exact vengeance. What this Committee and the Home Secretary are engaged in doing is arriving at an estimate of the dispositions of these individuals for the purpose of deciding whether it is necessary to apply to them preventive detention. In these cases what the Committee and the Home Secretary have to consider are not past facts but future probabilities. The point which has been urged by the hon. Member for Elland (Mr. Trevelyan), that there was an understanding in this House that questions of that kind were to be referred 1266 to a legal tribunal, is to suppose that the House was really in sympathy with some of the lurid imaginings which I well remember the hon. Member was giving expression to almost the day after the War was declared. To propose that these kind of questions should be referred to judicial tribunals would be doing a thing most disastrous to British judicial decisions, since it would be referring to the judges of the land a question of policy, and not of law. This is a very difficult matter, for the difficulties and complexity and embarrassment of which not we but our enemies are to be blamed.
§ Mr. ELLIS DAVIES
The hon. Member who moved raised the question that when the man is arrested he has now no right to see whether or not he has been properly arrested. I raised this matter by question in the House, and the answer I received was from the Prime Minister that the Regulation only applied to naturalised British subjects. On the other hand, the Attorney-General, in the course of his argument in the case, said that with regard to Regulation 4 (B), the effect was that the power conferred by it could be applied not only in the case of alien enemies, but also, if necessary, in the case of persons who were natural-born British subjects or naturalised British subjects. Our contention is this, that British subjects are being arrested and interned and held in custody, and have no access to the Courts of Law. The answer is made that no right is given under the Regulations for an appeal to the Court, but I think the complaint of the British subject is that a Regulation should have been made not to give him the right to appeal to a Court of Law first of all, to ascertain what is the exact nature of the charge upon which he is interned, and secondly, to ascertain what evidence the Executive possess of the charge which they make against him. It has been suggested to-day that the Court of Law is in a position to question the Regulations made by the Government. With all respect to the hon. Member, that suggestion is in-accurate. The question was raised before the Lord Chief Justice, who said:What we are to consider is whether or not the words of the Act of Parliament authorise the making of this Regulation. If they do, it is not for as to say whether the Regulation is good or whether it is bad.The position in which a man finds himself is this, that he is arrested, that he is interned, that no definite charge is very often made against him, and if he appeals 1267 to the Court, the Court tells him "you have no right under the Regulations to come here." I venture to say that that is a power vested in the Executive of which the House was not conscious. I distinctly raised the issue on the Second Reading of the Amending Bill of the Defence of the Realm Act in March of last year.
On a point of Order. Is it competent to discuss the basis upon which we passed the Act, and under cover of this Vote to seek to upset an Act of Parliament?
§ Mr. DAVIES
I am not disputing the question of the Act of Parliament at all. I am simply pointing out that what the hon. Member who raised the issue to-day claimed was the right of the person charged and interned under the Regulation to go to the Court, and I am mentioning that on the discussion of the Amending Bill I distinctly raised the issue as to whether a person arrested under the Defence of the Realm Act had the right to go to a Court of Law.
§ The DEPUTY-CHAIRMAN (Mr. Maclean)
If the remarks of the hon. Member are directed to suggesting a change in legislation they are out of order. As far as his remarks are directed to the Regulations, they are in order.
§ Mr. DAVIES
The point I was going to make is that this House was given to understand that under these Regulations a person arrested was entitled to know the charge against him and to go to a Court of Law to have it tested. Perhaps I may read what was said on the occasion in question. I referred to a case reported a few months before of a British citizen who was arrested and held in custody under the Defence of the Realm Act without any offence being charged against him. He appealed to the High Court for a writ of Habeas Corpus, and the Court refused to interfere. In answer to that criticism we had a speech from the then Attorney-General the Member for Walthamstow, and this is what the right hon. Gentleman said:If a British subject is arrested in connection with the Defence of the Realm Act"—His answer is quite definite, and is not limited to a particular Regulation—and an unreasonable time elapses before he is told what is the charge against him, it would take a good deal of argument to convince me that he would not be able to move for a writ of Habeas Corpus.I submit that the amending Act of Parliament was passed on the distinct under- 1268 standing in this House that a person charged in connection with the Defence of the Realm Act, whether under Regulations made before or after that date, had the right to apply for a writ of Habeas Corpus.
§ Sir J. SIMON
My hon. Friend is really confusing the dates. I do not complain of that, but I naturally know the dates, because the Act was passed when I was Attorney-General, and the Regulation we are discussing was made when I was Home Secretary. When I was Attorney-General what I said was quite correct, because the hon. Member was complaining of a case where the military authorities had arrested a man with the intention of trying him on a charge, but he was not being brought to trial. I naturally said that if that was the case he could move for a writ of Habeas Corpus. That has nothing to do with the question whether you can detain people without trial under a Regulation made afterwards.
§ Mr. DAVIES
The question was whether a person charged under the Defence of the Realm Act, under Regulations made by the Executive, had access to the Courts. The power to make Regulations was already vested in the Executive. It is perfectly true that this particular Regulation was not made until a subsequent date. But the decision of the Court goes a great deal further than this Regulation. It really decides the question, and asserts that under a Regulation made under the Defence of the Realm Act, provided it is within the power of the Executive to make the Regulation, there can be no appeal to a Court of Law by the person interned. The complaint of the hon. Member who raised this question is, I understand, that under this Regulation there is no provision, as there should be, enabling the matter to be tested in a Court of Law. It is true there is an Advisory Committee to which these questions are referred; but I put it to the Committee that it was clearly understood that anyone arrested under these Regulations could go to a Court of Law, and I cannot understand why in the circumstances, when an alien spy is entitled to be tried by the judges of the High Court, the same right in any event is not given to natural-born British subjects who may be interned at the will of the Home Secretary.
§ Sir W. BYLES
I do not approach this question as a lawyer. I want to get it 1269 away from the mass of cobwebs which have been woven around it in recent speeches. I interrupted my right hon. Friend to say that it was not done by Act of Parliament. He disputed that. I say that the whole of the mischief complained of in this Debate has arisen not from the Act of Parliament, but from the Regulations which have been arbitrarily made under that Act. I maintain that the House of Commons at the time the Defence of the Realm Act was going through had no idea whatever that they were surrendering an immemorial liberty which they enjoyed. I watched the passage of that measure when very few of my colleagues were taking any interest in it. The Noble Lord who is now Under-Secretary of State for Foreign Affairs was very watchful, as he very often is, in questions affecting personal liberty. I was grateful to him then, and I have been many times since. It is true there was a phrase in that Act—I forget the exact words—enabling the King, by Proclamation, to make Regulations. I do not dispute the legality of the Regulations which have been made; they may be legal, but they are altogether apart from the intentions of Parliament. That is all I say.
§ The DEPUTY-CHAIRMAN
It is not in order to discuss the intentions of Parliament in an Act which is now on the Statute Book. The hon. Member must confine himself to questions of administration.
§ Sir W. BYLES
I agree that the Act is on the Statute Book and these Regulations are made under it. I am not sure but that we get rather clearer ideas now on these broad questions of British personal liberty in another place than we do in this House. I think there is more outspoken criticism there, and sometimes franker explanations by the Government in reply. A Noble Lord who lately sat on the benches opposite, Lord Parmoor, has been writing letters to the "Times" on this subject, and he points out in a recent letter two things which we ought to watch, and which I hope not only the House of Commons, but the country, will watch. One is that Parliament should make the law and not the administrative body after the Act has been passed. The other is that the judges should administer the law, and not some irregular committee set up outside. It seems to me that we ought to keep these two principles broadly in mind. These Regulations, which are so voluminous, are not the Act of Parliament; they are made by administrative 1270 authority outside what Parliament intended. Further, the law is not administered by the judges of the land. I admit the great ability and persuasiveness shown by my right hon. Friend the Home Secretary earlier in the Debate. What upset me, as far as my opinions had been previously formed, was that he said you cannot charge these people, and therefore you cannot try them—that is to say, you should have an arbitrary power to deal with them. Why not get an Act of Parliament to enable you to detain them until you can try them? I am satisfied it is a dangerous thing that the Executive should have power to dispense with the protection which these laws have given us in the past. No doubt the difficult cases which the right hon. Gentleman picked out from the list are such that no one would contend that the people ought to be at large All I maintain is that you ought to have the power of an Act of Parliament to detain them.
§ Colonel YATE
I cannot acquiesce in, or agree in any way with, the suggestion that great praise ought to be bestowed for the prompt action of the competent military authorities in arresting aliens and other diaffected persons. I have heard of a case where there was a fire in a large store. I have heard of a case where a fuse of gunpowder was laid to another store. The military authorities have reported such matters time after time and begged for something to be done, but could get nothing done. I ask the Home Secretary to take the matter into consideration and allow the officers in charge of stores and other places where there is great danger to take prompt action in connection with the local police, instead of having to report to the red-tape-bound Departments of the War Office. These reports are sent to the War Office, but are never acted upon; they are banded about from one to another, and nothing is done. We must have prompt action in this matter. Our stores are far too valuable to be at the mercy of any red-tape system like that at the War Office. I hope the question of permitting reports to the local police and taking prompt action on them will be seriously considered.
§ 6.0 P.M.
It must not be supposed that those Members who have not risen to support the hon. Member who raised this question are not in sympathy with maintaining the liberty of the subject. I think there is no more important question that could be brought before the Committee, and I do not think our time to-day 1271 has been wasted in dealing with the manner in which the authorities have endeavoured to carry out their exceedingly difficult duties in this connection. I am sure the whole Committee is thankful to the hon. Member for Blackpool for bringing this subject before us. The country owes a debt of gratitude to the hon. Member for his watchfulness on this point. Whenever it is found necessary to interfere in the slightest degree with the ancient privileges and liberties of everyone who sets foot on British soil, whether a British subject or not, it is not a waste of time at intervals to see whether those powers are being efficiently and properly carried out. I do not think it is possible for any hon. Member who heard the full statement of the Home Secretary to doubt the intense care and trouble that have been taken by that right hon. Gentleman and his predecessor in connection with this very difficult subject. We are at war, and we are obliged to resort to special means, not of punishing offences which have been committed—that is not the point at all—but of preventing the possibility of something being done which might be very harmful to a vast number of our fellow citizens. We ought to be content to leave these well-guarded and well-executed powers in the present hands. It has been made perfectly clear to the Committee that nobody can be deprived of their liberty without the proceedings first being set on foot by the naval or the military authorities, and the Home Secretary has to be personally satisfied by evidence brought before him that it is a proper case in which to act. In addition to that you have the Advisory Committee. Some hon. Members have said, Why not have a judge of the High Court? On this Advisory Committee there are two judges of the High Court, therefore there is double the safeguard for which those hon. Members ask. There are Members of this House upon the Committee. It is not possible for this procedure to approximate in the remotest degree to anything in the nature of letters-de-cachet or anything to which the liberty-loving British subject objects. We have spent, I think, a very useful afternoon in brushing away any idea that anybody might possibly have that there was any injustice being done in this matter, or that anybody was being detained whom it 1272 was not highly desirable should be detained in the interests of the people of this realm.
§ Amendment, by leave, withdrawn.