HC Deb 15 November 1932 vol 270 cc1081-95

I beg to move, in page 2, line 9, to leave out Sub-section (3).

Before I say anything about the Amendment, I want to express my regret that a matter of such importance should come on on the last day but one of the Session, late at night, with a sort of intimation that the Bill must absolutely go through this Session. Why there should be any urgency, and why it should go through this week more than three weeks hence I, for one, cannot see. When one realises that as far as this House is concerned, up to now this is an unexplained Bill and that it certainly contains in Subsection (3) which I am moving to leave out, conditions against which this country has most carefully guarded for the last 300 years—when these conditions were not guarded against, we had a revolution as a, result—I think it is a little hard to ask this Committee at midnight, two days before the end of the Session, to pass this Bill and do it almost in such a way as to suggest that it really needs no discussion at all.

The purpose of the Bill, as far as the first Clause is concerned, appears on the face of it to be a simple one, and so it is in the main. It is to give to visiting forces from the Dominions to this country the right to hold courts and to deal with the discipline and internal administration of those forces, according to the law of the part of the Commonwealth from which those forces come. That, in itself, may sound perfectly innocent, and so it would be if there were proper safeguards for the due administration of that jurisdiction. Those proper safeguards have always been recognised in this country as being a right of appeal to the civil courts against any wrong-user of that jurisdiction. So far from that being so, having given this jurisdiction, we proceed in Subsection (3) to make it quite impossible for the courts of this country to inquire into the exercise of that jurisdiction, except as to one point, namely, as to whether the man who is dealt with by court-martial is a member of the forces who have submitted him to court-martial. It comes to this: We say to the visiting forces that they may arraign a man before a court-martial with regard to matters of discipline or internal administration, the court-martial may sit, the man may be sentenced to imprisonment or even to penal servitude, and it may be that the court-martial exceeds its jurisdiction or does something it has no jurisdiction to do at all. The man may be put in a British prison, and while he is there he will be entirely deprived of the ordinary right of a British citizen to appeal to the civil courts of this country against the excess or wrong exercise of jurisdiction.

Our forefathers fought for the right to appeal to the civil courts, and it is a right that has always been carefully safeguarded. Ever since this country thought it necessary to adopt the procedure of habeas corpus, that has certainly been one of our most jealously-guarded rights. If a man is dealt with here by a military tribunal and is a member of an English force, he has always the right to question that military tribunal's exercise of jurisdiction. He may question it in more than one way. He may question it by writ of certiorari, calling upon the tribunal to bring up the conviction in order that it may be quashed as being in excess of jurisdiction. He may question it by suing by writ of habeas corpus. He may, if he chooses sue the commanding officer for wrongful imprisonment.. In any one of these three cases the High Court will inquire into the exercise of jurisdiction, and if it finds that the jurisdiction has been wrongfully exercised, the man is entitled to his remedy. If it is for a writ of certiorari or a writ of habeas corpus he is entitled to be set at liberty, but if he sues for damages he is entitled to damages from the man who has wrongfully imprisoned him. Under this Bill, if it passes, the position is this, that directly he tries to exercise any one of these remedies he is met by Sub-section (3), under which the civil court has to assume (1) that the service court was properly formed, and (2) that it acted according to its regular rules. Then—a thing which is wholly unprecedented in our law—the civil court has to assume that the special court, upon which a limited jurisdiction only is conferred, has acted within that juris- diction and that the civil court is absolutely debarred from inquiring as to whether that jurisdiction has or has not been rightly exercised. In other words, having limited the jurisdiction, we refuse to our own courts and to our own citizens—it is our own citizens who will be being dealt with—the right to raise in our courts the question whether that limited jurisdiction has been exceeded or not.

12 m.

The whole principle of the guardianship of liberty certainly since the Revolution, has been to see to it that military courts are under the supervision of the civil courts, and we have to be extremely careful to preserve for every man his right of appeal to the civil courts. Here, it is taken away. I understand that it is said that this has been done by arrangement with the Dominions. I cannot think that the Dominions can have carefully considered what they are doing if they have made any such arrangement. I cannot understand that any Dominion Government has a right to barter away, for that is what this is doing, the liberty of British citizens in other parts of the world. If it be that this is an arrangement, then it is tantamount to a Dominion Government saying to us: "We desire you to give us the right to imprison our subjects within the territory of the mother country and to deprive them of any right of questioning that imprisonment in the mother country. It may be said that they have the right of appeal within their own Colony, but what good is it to a man who may be sentenced to two years imprisonment, who is put in an English prison, to say that through friends in Australia or Canada he has a remedy. We are saying for the first time for 300 years that we will give someone the right to imprison a British citizen in a British prison, but that as a British citizen he shall not exercise his right to get the protection of our civil courts, a right to which he is entitled. That is not an example to set the world in these days. We have prided ourselves on our love of liberty, but as this is a matter of the liberty of the subject, not of spending money, the benches of the Labour party are almost empty. I hope the public will notice the extent to which they defend the liberties of the people. I have always thought that this House was the guardian of British liberties, but if it is going to allow a revolutionary Measure of this kind to go through and if the Opposition is so pusillanimous as not to discuss it, it is a very ill day for this country and a great departure from the traditions of the past when liberty was preserved in this land and we were able to remain a free people.


My justification for rising to support the Amendment, especially as this is the first time I have had the honour of addressing the House, is that the Sub-section raises a question of the greatest importance to the people of this country. May I remind hon. Members of the position of courts martial? It is necessary to appreciate this in order to understand the effect of this Sub-section. A considerable amount of misconception exists as to the powers of courts martial. The civil courts of this country for many years have been very jealous to protect the liberty of the subject against any extreme use of their powers by courts martial, and one or two principles have been so well established as to be said to be part of the law of the land. Professor Dicey in his well-known book on "Law and the Constitution" says: If a court martial exceeds its jurisdiction or an officer, whether acting by court martial or not, does any act unauthorised by law, the action of the court or the officer is subject to the supervision of the courts. We find the matter put with equal plainness by Lord Haldane in his article on "The Royal Forces" in "The Laws of England" where he says quite clearly: Members of courts martial and naval and military authorities generally are responsible as individuals to any person injured by reason of their having acted, either without, or in excess of their jurisdiction. The same principle was stated as recently as 1919 in this country, in these terms: If the acts of military tribunals or officers with respect to military discipline be insusceptible to supervision by the civil courts, then the gravest consequences might ensue. It can scarcely be that military men are, alone, the interpreters of military law. If so, they become above the civil law and to so hold, would he to exclude the courts from one of their most important and beneficent functions. The judges are the interpreters of the law. The military law is a part of the law of the realm. It rests on a statutory basis. The soldier is a person subject to two sets of laws, the military law and the civil law. The learned judge who delivered that judgment stated the principle in this form: It seems to me, as a matter of principle, that the liberty of a soldier should not be infringed, nor should his person be invaded, save in so far as that infringement or invasion is justified by either the law military or the law civil and the question of justification should ultimately be determined by the ordinary courts of law. It is for those courts to determine the extent of the military jurisdiction given to military tribunals and officers by the enactments of Parliament. Having pointed out what must be conceded to be the general principle of our law with regard to courts martial, let us see what this Sub-section provides. It provides, with regard to any member of visiting forces of the British Commonwealth coming to this country, that if sentence has been passed upon such member, whether within or without the United Kingdom, by a service court of that part of the Commonwealth to which he belongs, then, for the purpose of any legal proceedings within the United Kingdom, first, the court shall be deemed to have been properly constituted—whether properly constituted or not—second, its proceedings shall be deemed to have been regularly conducted; third, the sentence shall be deemed to be within the jurisdiction of the court and in accordance with the law of that part of the Commonwealth; fourth, if executed according to the tenor thereof, it shall be deemed to have been lawfully executed; fifth and last, if the unfortunate member of a visiting force, having been dealt with by a tribunal improperly constituted or by proceedings irregularly conducted, is then detained in custody, that custody shall be deemed to be legal custody. I sincerely hope that the Committee will regard this as a grave attack upon the liberty of the subject and a matter which ought to be thoroughly and seriously considered; and that hon. Members will agree that proper time ought to be given for its discussion, instead of having it brought before the House in Committee at this hour of the night.

The SOLICITOR-GENERAL (Sir Boyd Merriman)

I am sure the Committee wish to congratulate my hon. and learned Friend upon his first speech in the House of Commons and condole with him on the fact that he has had to make that very attractive speech at this time of night. If I thought that this Sub-section, which I am going to ask the Committee to approve, repealed Magna Charta or tore up the Habeas Corpus Act., I should not be inviting the Committee to reject this Amendment. But its scope is very limited and it does not, I think, involve any of the consequences indicated by my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord). We are dealing here with detachments of the forces of self-governing Dominions, who, with the consent of their own Governments and at the request of His Majesty's Government in the United Kingdom are visiting this country—as for example a contingent from a Canadian regiment who have come here to take part in a military tattoo. The idea is that they shall carry their own law with them when they come here and, correspondingly, that our people shall carry our law with them when they go on similar visits to any of the self-governing Dominions. It is said that we are infringing the rights of British citizens and denying them access to the courts. It is true that these visitors are British citizens in the sense that they are citizens of the British Commonwealth of Nations, but they are also citizens of Canada or Australia or whatever may be the self-governing Dominion to which they belong. I cannot help thinking that the argument which has been addressed to the Committee overlooks two very important factors. One is that the countries from which these detachments may come, are absolutely self-governing and the other is that those Dominions have no less zeal than we have in this country and in the House of Commons, for maintaining the liberty of the subject. It is said that we are overruling the right of any court in this country to question the jurisdiction of a subordinate tribunal, like a court martial to try and sentence men. It is quite true that that is the effect of this Clause. The idea is that the courts in this country should not be permitted to interfere in that jurisdiction to try those particular men. When it is said that our courts ought to be given such power, do let it be remembered that the question of whether a service tribunal, which Canadian or Australian forces bring with them here, has jurisdiction to try a particular soldier depends, not on the law of this country but on the law of the country from which they come. It is under their own Army Act, or Air Force Act, or Naval Discipline Act, as the case may be, that the man is tried.


The jurisdiction that they get to try their men here is from this Measure and from this Measure only, as I understand the Bill.


They have a perfect right, just as we have, to ordain that their own courts, however they choose to constitute them, shall try their own men, wherever they like. We also have a right to say that we recognise their doing so. But, first and last, these men are being tried under their own law. To argue that our courts, our King's Bench Division, are to have the right to say whether that jurisdiction is being infringed or not, involves the consequence—and this proposition cannot be denied—that our courts are to be asked to interpret Dominion law. It may be easy or it may he difficult, but it is being asked to interpret Dominion Law. Suppose it is said that there is no jurisdiction to pass a particular sentence. That involves one or both of two things: either that the information has not been properly laid under the law under which the man is tried, or that the offence with which he has been charged does not warrant the particular sentence which has been passed. Those two things, or either of them, are matters not of the law of England but of the law of the Dominion from which the man comes. That law has to be proved as a matter of fact, before any court in this country has a right to act.

The whole scheme of this is simply that the Dominion from which that man comes shall provide the courts to which a man who says that his own law has been infringed should be able to appeal in order to establish his rights. I can assure the Committee that the Government have no wish whatever to detract from the cardinal principle that no British citizen is to forfeit his liberty, except according to law. The law in this case is the law of the Dominion from which the man comes and of which he is a citizen. The Bill provides that the law is to be interpreted not by the courts of this country but by the courts to which he owes allegiance. His mere presence in this country for a very special reason and in very special circumstances shall neither entitle nor oblige the courts of this country to usurp to themselves, or at any rate to assume, the office which can perfectly well be performed by the courts of the country from which the man comes. I assure the Committee that there is nothing more in the Clause than that, and that it is an exaggeration to talk as if this was an infringement of the Habeas Corpus Act.


I did not take any part in this Debate before, because I was waiting to hear what the hon. and learned Gentleman was going to say with regard to the matter. His excuse seems to be that it is only a little matter. I cannot accept the hon. Gentleman's statement with regard to the authority of Dominion courts-martial in this country. They only have authority to sit as courts and try cases here by virtue of Clause 1 of this Bill. No Dominion has any right to send a court to this country and to administer justice here, unless it gets authority from the Crown, any more than any foreign State would have the right to do the same thing. The question to which objection is raised is not one of Dominion law, as I understand it; it is a question of English law, namely, whether a man is rightly imprisoned in this country. That is not Dominion law, but English law. It may be necessary to inquire into the facts which led to his imprisonment, and that inquiry may raise a question of Dominion law, but the matter with which the liberty of the subject is concerned is the imprisonment which takes place in this country, and that is the matter with which the Mover of the Amendment is concerned.

No right is given under this Clause, as it stands, for anybody who believes himself to be wrongly imprisoned in this country to raise that question before any court. That is certainly something, but the learned Solicitor-General says: "Oh, but it is difficult, because there is Dominion law." There is a very simple solution—proceed by Habeas Corpus to the court which is the appellant court to the Dominions, and which is perfectly familiar with the administration of Dominion law. They give the right to appeal direct to the Privy Council to raise the matter, and to solve the whole difficulty. I ask the hon. and learned Gentleman to put in a provision by which, in such cases, an appeal by habeas corpus can be carried to the Privy Council.


I did not intend to intervene in this Debate at this late hour, but there is one point which I think has been overlooked by the learned Solicitor-General, That' point is explained if one takes a hypothetical case. Assume that one of the visiting troops has happened to be prosecuted before the Assizes, or before the Central Criminal Court, and is tried before one of His Majesty's Judges and is acquitted. He, having been acquitted, it would be contrary to the whole of our procedure that he should be tried again. Perchance he may be indicted for the same offence before one of these tribunals, and the courts who acquitted him could not possibly come to his rescue and get him out of prison, or relieve him of a sentence which everybody agreed was unjustified.

One has only to think of that hypothetical case. It is all very well for the Government to say that that sort of thing will not happen; this Committee ought to say that it might happen and that we will not allow it to happen. That is the reason why I think that my hon. and learned Friend should insist that this Sob-section be omitted. Otherwise we might find that people who have been acquitted once by a court which we recognise, may nevertheless be indicted before some tribunal set up in this country, and would be imprisoned in this country, and that our courts could not come to their assistance. That is not only contrary to the law of this country; it is contrary to the law of the whole of the Empire, is contrary to the principles of justice, and ought not to be allowed.


As a very junior member of the legal profession, I could not help being impressed with the very great weight of legal authority exhibited in the previous speeches. The argument upon which the learned Solicitor-General seemed principally to rely was that there was an inconvenience in the matter of dealing with the law of the Dominions in this country. That argument bas been met in various ways. Surely he will realise that it is not an insuperable difficulty. Cases under a different law from oar own are being dealt with in the courts every day. Again and again expert evidence is brought before the court to point out what is the law applicable to the situation, and that would not be British law.

I particularly hoped to hear from the learned Solicitor-General a word to indicate in some way what was the reason for this Bill. No hon. Member, speaking upon a subject like this, has a desire to embarrass the Government in making the best possible, and the most amicable, arrangements with the Dominions, but if there is some outstanding case where inconvenience or injustice has been caused by this law not being in existence, and if something like that had been put before us, we should have understood the object of the Bill better. We have not been told anything.


I am afraid that the hon. Member is getting back to a Second Reading speech.


I will not pursue the matter, if I am getting beyond the bounds of order. Perhaps I should not have strayed there, had the learned Solicitor-General told us more about the Bill. It was a very dangerous line of argument for him to take, to say that in any matter which concerns the liberty of the subject the Bill was not repealing habeas corpus and was not abolishing Magna Charta. Liberty has to be defined in small things as well as great. It has been said that the price of liberty is perpetual vigilance. I am very glad that vigilance of that kind has been shown to-night in regard to this Bill, and even at this late hour. The principle for which we stand is not a small thing; it is that British civilian justice should ultimately prevail upon British soil. I think that that is something that is well worthy of our consideration.


The Committee is under some misapprehension, owing to the fact that the Second Reading of the Bill passed without Debate. No general information was given on it. In two sentences, I shall attempt to give that general explanation, if I be not out of order. Hitherto, the visiting forces in this country had the ordinary law of the country applied to them. They came under the Army Annual Act and the Navy Discipline Act. These Acts no longer apply to visiting forces from those Dominions which have adopted the Statute of Westminster, and therefore it is necessary to pass a Bill of this sort in order to make the law of the Dominions apply to members of Dominion forces when visiting this country. That is the reason for the Bill.

Speaking after many lawyers, and with a great sense of diffidence, I would say that it seems to me that the problem is not really such as it has been represented to the Committee. This Bill cannot affect the liberty of one British subject living in this country. It cannot affect in any way the liberty of any British subject in any Dominion or colony which has not adopted the Statute of Westminster. Many hon. Members of this House gravely doubted the wisdom of the Statute of Westminster, but when that Statute met with the approval of Parliament, we deliberately adopted the attitude that those Dominions were henceforth entirely self-governing, and that, so far as rights hitherto enjoyed by British subjects living in those Dominions are concerned, it will in future be their own funeral to look after those rights and to see that they are preserved. Therefore, when members of the British Empire coming from South Africa visit this country, it will be for them and for their own nation to look after their liberty. They will be in the same position as members of a foreign force visiting this country.

Our position will be to make sure that anybody brought up before one of their courts-martial is actually subject to that jurisdiction. The legislation is passed in a foreign country, for the visiting forces from that country, and it is plainly not our business to interfere when they are carrying out their own law. I am surprised at the objection that comes from the Liberal benches; if some of those hon. Gentlemen had objected to the Statute of Westminster I should have understood this better, but I submit that it is only logical that we should take this further step, which is a corollary of the original step, and that we should say that members of visiting forces should be liable to the laws of their own Dominions and should have no advantage over for- eigners in applying to British courts. Our duty is simply to make sure that their own courts have jurisdiction over them. I feel sure that we can rely upon our fellow-subjects in other Dominions to protect their own ancient rights of habeas corpus and Magna Charta.

That is the position of the Bill, which has been agreed to by the Dominions, who are passing similar Acts to put our visiting forces in the same position. South Africa has already actually passed an Act which, I understand, is in exactly similar words to this Bill. We should go back on the undertaking that we gave to the Dominions if we altered this Bill, and obviously much time and trouble would be lost if a Measure which has already passed through a number of stages did not become law this Session.

12.30 p.m.


The ordinary foreigner visiting this country is entitled to seek the protection of our laws. I do not in the least follow the Financial Secretary to the War Office in the observation which he has made in support of this Bill. In common with my hon. and learned Friends around me, I cannot help thinking that it is a subject of regret that a matter of so much importance should be debated at this time of night. It may be that there are very good reasons indeed, having regard to the effect of the Statute of Westminster, why we should give this particular protection to the Forces of the Dominions visiting this country. I cannot help feeling, at the same time, that it would be very much better if this important constitutional matter were debated at some more convenient time when Members of this House would have the opportunity of considering it in all its bearings. Having said that much, I would like to remind the hon. and learned Member that this problem is not altogether a new one. I was for a time—less than 12 months—responsible in a humble capacity in the Judge Advocate General's Department for looking into some of these matters.

When the American Forces came to this country this very problem had to be dealt with very largely in the way provided in this Bill. After all, that was during war time, and this country is suffering already from a number of things introduced during war time to which we would like to say good-bye. I am rather anxious that we should not, in a moment like this, fasten upon ourselves something which is advocated merely because it worked very well during an emergency. I know it worked very well so far as the American Forces were concerned, but there were here for only a short time, and they went speedily across the seas to France where they were engaged in combating the common foe. I do appeal to the Government. There seems to be no great urgency, and it does seem to me to be a matter worthy of greater consideration than it can have to-night. Although I should be prepared from my past experience to give support to some such provision as this, I am not at all convinced that the matter has been worked out in all its details. I hope the Government will see that we have a further opportunity of dealing with the matter more effectively.


I beg to move, "That the Chairman do report Progress, and ask leave to sit again."

There have been appeals made to the Government from all parts of the Committee that further time should be given for the consideration of the matter now before the House. The Government never wish to dragoon the Committee, particularly their own supporters, at a late hour. This Order will be put down as the first Order to-morrow.


I would like to know from the Patronage Secretary how much time in the early part of the day is likely to be given to this Bill. We have a Motion on the Paper which it is proposed to discuss to-morrow and, from the large number of hon. and learned Gentlemen who were rising to their feet at this hour of the morning, I am sure that there will be still a larger number, and the speeches will be of greater length, at a more reasonable hour. I think we had better see it through this morning and get it done. A bargain is a bargain in this Committee. The Opposition have not attempted to use the power that an Opposition might possess in regard to business during these last few days. There is an honourable understanding as to the business to be taken to-morrow. This Bill is highly contentious, and, if it is adjourned until to-morrow, there will be no time for our Motion at all. I think that that would be an abuse of the power of the majority. I am, therefore, protesting against the Motion to report Progress unless we can get some sort of assurance as to how much time is to be given to this Bill to-morrow.


The last thing I would wish to do is to act unfairly. The Leader of the Opposition has treated the Government all through this Parliament with the greatest consideration and, indeed, helpfulness. I would just remind him that when the statement of business was made by the Prime Minister last Thursday it was specifically announced that the remaining time on Wednesday would be allowed to the Opposition for their Motion. I would' ask him not to make the assertion that the Government are breaking their bargain. The bargain is that we must first dispose of Government business tomorrow. There has been a certain discussion this evening, and a certain number of speeches. There are obviously other hon. and learned Members who have other points to make, but I cannot believe that a great deal of time will be occupied. There will be no desire to obstruct. On a point of that kind, I can make no hard and fast bargain; yet I am equally satisfied that the Committee as a whole do not wish to upset the arrangement.


It is quite true that the Government business was to be finished first, but it is equally true that these Bills were considered as non-contentious. It has been discovered by the legal gentlemen whose duty it is to discover these things—[Interruption.] Hon. and learned Gentlemen say that something should be done. The Solicitor-General says that something else should he done. I am a layman in these matters, and what is a layman like me to do. Ordinary people may get in the cart. The point is that when we made this arrangement we all thought that the Government business to-morrow would not be highly contentious. If this business gets going to-morrow in the fashion it has started this evening, there will be no discussion on secondary education. I only want to safeguard that. The last statement of the Patronage Secretary was received with approval by the Committee, and I think my friends and I will depend on the decency and generosity of the Committee to see us through.


May I first of all thank the Patronage Secretary for the way in which he has met us. After what has been said, we shall certainly do all we can to keep the discussion within reasonable limits and with due regard to the importance of the subject. May I also express my pleasure at the fact that the Leader of the Opposition has at last discovered that it is the duty and the privilege of lawyers to defend liberty.


Lord help liberty!

Committee report Progress; to sit again To-morrow.