HC Deb 13 February 1933 vol 274 cc734-55

Order for Second Reading read.

7.48 p.m.


I beg to move, "That the Bill be now read a Second time."

This Bill has already received a Second Reading in this House. On that occasion it was passed without discussion, but subsequently, on Committee stage, a legal point was raised by the hon. and learned Member for Norwood (Sir W. Greaves-Lord) which led to some Debate. The hour was late and my right hon. Friend the Patronage Secretary was unwilling to detain Members on that particular occasion. The Bill was there fore dropped for the time being. It has now been reintroduced in another place, where it has been thoroughly discussed by the high legal authorities who dignify that assembly and after a very careful scrutiny it is once more brought before the House of Commons unaltered and unamended. Some of the difficulties which arose in Committee on the last occasion were perhaps due to the fact that no discussion or explanation had taken place on Second Reading and hon. Members were not clear as to the purpose of the Bill. For that reason it may be well to explain the purpose of this short Bill.

The main reason for the Measure is the fact that the Statute of Westminster has altered the relations between Great Britain and her Dominions. There are rare occasions when members of the British Forces of this country find themselves in our Dominions, and there are occasions, equally rare, when Dominion Forces come to this country. In peace times these occasions are very rare, but as things exist to-day British Forces in the Dominions and Dominion Forces in this country have no legal sanction for the maintenance of discipline. In the past, when British Forces have been in the Dominions, the Army Annual Act has continued to control discipline in the same way as when they are in Great Britain. The same has been the case when Dominion Forces have been in this country. The Statute of Westminster has altered all that and the Army Annual Act has now no authority in the Dominions and, similarly, Dominion Forces in this country have no legal sanction for the protection of their discipline in this country. This difficulty was foreseen when the Statute of Westminster was passed, and it was provided by agreement between His Majesty's Ministers and Dominion Ministers that the necessary legislation should be passed through the respective legislatures in order to make the situation satisfactory.

All that the Bill does is to give to the Forces of the Dominions when they are in this country exactly the same position as they would have if they were still in their own Dominions. The Bill affects nobody except British subjects, British soldiers, who are members of Dominion Forces, and it affects them only when they are in this country. It assures to them exactly the same position as though they were at home. It is understood that the same legislation will be passed through the Dominion Parliaments, so that British soldiers in the Dominions shall have the same status as though they were at home and governed by the Army Annual Act. I do not think that there is any difference of opinion as to the necessity for a Measure of this kind. During the War, when American troops were here, legislation of this kind was passed under the Defence of the Realm Act, and it worked satisfactorily.

The only difficulty raised is the point that we are depriving the Dominion soldier of recourse to our civil courts. That is true; but they have still the right to appeal to their own courts, the ordinary civil right which soldiers have in this country when they join the Forces. The difficulty of making the change suggested in this Bill, to give the soldier the right of appeal to the civil courts in this country, is that it would go against the whole spirit of the Statute of Westminster to allow our civil courts to interfere with the discipline of Dominion troops, and if similar legislation was introduced in the Dominions it would obviously give great concern to our military authorities if they thought that our troops in the Dominions could appeal to the Dominions civil courts against a decision of the military authorities. That is one great objection. The other is that a Bill on these lines has already passed through the South African Parliament on the understanding that we are going to pass this Bill through this Parliament. I hope, therefore, that hon. Members will agree that the Bill should now receive a Second Reading.

7.53 p.m.


The Financial Secretary has skated very lightly over the objections raised, not only in another place, but in the Press against certain parts of this Bill. He has told us that it has been discussed by well-known legal authorities in another place and passed, but he has not told us that the great legal authorities in another place condemned the Bill and strongly objected to its provisions. He also told us that Dominion soldiers in this country under this Bill would be in exactly the same position as when they were at home, but he forgot to say that when they are in their own Dominions they can appeal for a writ of Habeas Corpus, which they cannot do when they are in this country, because a writ of Habeas Corpus in a Dominion court would not run in this country. Why we are objecting to the Bill is because Subsection (3) of Clause 1 takes away from Dominion soldiers the protection of Habeas Corpus, which they enjoy at the present time.

A British soldier is under the Army Act, and subject to its provisions. The Army Act lays down in great detail the regulations by which discipline shall be maintained. It defines the constitution of the court and says what punishments can be inflicted for certain offences. If a soldier is condemned before one of these courts he can only appeal to a superior military authority, but if the court is improperly constituted, or has exceeded its jurisdiction, or has inflicted any punishment which it is not allowed to inflict under the Army Act, then a writ for Habeas Corpus can be applied for and the soldier can, appeal to the civil court. Although he is a soldier he serves under an Act of Parliament and has not been deprived of his rights as a citizen. This is an important point. Many years ago there was an incident of a soldier who was sentenced to be shot. A few hours before the execution was to take place a writ of Habeas Corpus was applied for, but the Provost Marshal refused to recognise the writ and said that he only recognised the orders of his superior officer. The Court of King's Bench thereupon issued an order for the arrest not only of the Provost Marshal, but of his superior officer as well. They were arrested and brought before the Court.

This right is not only possessed by a soldier and by British citizens, it is possessed by everybody who dwells in this country even if he has only been here an hour. It is possessed by foreigners, and aliens, and by fugitives from justice from foreign countries. Even the foreigner who has been arrested under an extradition order can appeal for a writ of Habeas Corpus, and if the civil courts are not satisfied that an extradition order should be granted they can make an order for his release. Anybody in this country, foreigners, members of the Dominions or English citizens, in the Army or not, have this right to appeal for a writ of Habeas Corpus, and now, for the first time, it is to be taken away from people who happen to be members of the Dominion Forces. That is the great objection we have to this Bill. Consider what might happen. Suppose we had Dominion soldiers over here in camp side by side with British soldiers. A Dominion soldier might be accused of an offence committed in company with a British soldier, and both might be unjustly condemned. The British soldier could be released by an appeal to the civil court, but the Dominion soldier would have to remain in custody. That is a position which cannot be justified. The Statute of Habeas Corpus is not an unimportant Measure. It is far more important than the obsolete Acts of Edward III or King Canute, from which the present Government appear to derive their inspiration. It is the key-pin of English liberty. It is the most important Statute we possess. In the "Encyclopaedia Britannica" it is described in these words: It declares no principles, and knows no rights, but is for practical purposes worth one hundred Articles guaranteeing constitutional liberty. This National Government apparently have no regard for constitutional principles, and are rather more keen on putting persons in prison under musty Acts rather than in safeguarding the liberties which our forefathers wrung from the reluctant hands of Scottish kings. I feel that the spirit of this House is far greater than its Members, collectively or individually. The House of Commons is permanent, we are evanescent. This House throughout all our history, irrespective of party, has shown itself as the defender and guardian of British liberties. That spirit is greater than party. There can be no party feeling about a question of this sort. No party principle is involved. It is a question of British freedom and the precious right of Habeas Corpus. I hope the House of Commons will respond to that spirit, and will support us in rejecting the Bill because it contains Clause 3. The Financial Secretary said that it was necessary to pass this Bill in order to maintain discipline. There is no necessity to deprive the Dominion soldier of the right to appeal to the civil courts in order to maintain discipline. There has never been any question about the discipline of the British Army being weakened because a soldier has the right under certain circumstances to appeal to the civil courts. There is no difficulty in maintaining discipline. We have no objection to the Bill as far as it is designed to allow Colonial military authorities to maintain discipline in their own troops over here, but we object to that part which deprives British citizens, members of Dominion Forces, of the right of appeal to the civil courts, and the right to apply for a writ of Habeas Corpus.

8 p.m.


I do not rise for the purpose of supporting the rejection of the Bill, but I am extremely glad to find that Members of the Opposition have awakened to the fact that there is in this Bill a serious attack on liberty.


What about your own friends?


When this Bill was last before the House of Commons the Labour Benches were empty, and it is only when the question was raised from these benches that for the first time hon. Members opposite began to take a languid interest in the question of liberty. It is refreshing to find that they have, at last discovered that liberty is in jeopardy. I appeal to the Government to deal with the provisions contained in Sub-section (3) of Clause 1. I agree that it is a Committee point, but it is a point so vital that it should not be overlooked. If this National Government chooses to disregard one of the principles which is instinct in British Government, they will create a precedent of the worst possible type. I am not asking that the Government should in any way differentiate between Dominion Forces visiting this country and our own Forces. Neither am I asking that they should put the Dominion Forces in any other position than the position they would be in in their own Dominions. As I understand it, it is not only instinct throughout the Empire that military courts have always been subject to the right of revision by the civil courts, but it is absolutely instinct in the British constitution that it should be the case.

We have never allowed the military authorities to disregard the ordinary civil rights of British subjects, and we have never allowed them to be superior to the civil courts. It is quite true that in our own country, dealing with our own courts-martial, we do not inquire into the internal management of the military courts. But what we are insistent upon is that those military courts should be kept within their jurisdiction and should not exceed their jurisdiction; that they should not act without jurisdiction upon any man while subject to military law. That right is the right of every British soldier, and when he goes into the Army he knows perfectly well that if a military court attempts to deal with him without jurisdiction he has a right to go to the civil courts, to apply for a writ of habeas corpus; and that unless his imprisonment can be justified upon the ground that the military court had jurisdiction to deal with the offence with which he is charged, then he is set at liberty by the civil courts. As I understand it, in our own Dominions, the same position exists. If a member of a Dominion force is improperly imprisoned by his own officers he will have the right to appeal by habeas corpus to his own courts within the Dominion in which he is. Those courts, if they find that the military court is imprisoning a man without jurisdiction, will interfere and set the man at liberty.

Those are the fundamental rights of British subjects. They are not some right which is merely the creature of statute; they are the right which is practically instinct in the British Constitution. That being the position, I ask that this Parliament should not interfere with them. It is all very well to say that this Measure takes away no right. That is not true. Everybody in this country who is imprisoned either by a military force or by anybody else without jurisdiction has the right to sue out a writ of habeas corpus in the courts of this country, and the civil courts of this country has a right to inquire by what jurisdiction that man is in prison. If this Bill passes, that right, which has existed for centuries and for the existence of which our forefathers died, will be taken away from us.

In the same way, a British subject who happens to be in a Dominion has apparently had his rights bartered away under the Statute of Westminster, and a British soldier who happens to be in a particular Dominion with the force to which he belongs is to have bartered away from him the right which he has at present of appealing to the Dominion courts if he is improperly and without jurisdiction imprisoned by his military officers. The answer which has been made is that this fact does not prevent him from appealing to the courts of his own British Dominion. The Under-Secretary knows perfectly well that that answer is so much rubbish. It is no good saying that a member of a Dominion Force visiting this country has the right to sue out a writ of habeas corpus, say, in Australia. In the first place, if he sued it out in Australia it would not run here; it would not have the smallest effect upon a military officer in this country, because the Statute of Westminster itself prohibits that proceeding. The result is that the man would be left defenceless against the usurpation of jurisdiction by his own officers. In the same way, if a member of a British Force were in Australia with the British Force, it is idle to say that he could sue out a writ of habeas corpus in this country. Under the Statute of Westminster, as I understand it, that right would not run in Australia.

One thing is not unimportant. The Statute, it is true, is reciprocal, but it only applies to those Dominions who adopt the special form of Act of Parliament or to those who have adopted the Statute of Westminster. It is a curious thing—and the Government can take it to heart if they choose—that the only part of the British Dominions has been one, and the only one, in which there has been any serious talk of secession from the British Empire. It is an amazing thing that that should be so, but it is true, and I think that it is about time that it was said. If we are going to barter away British rights it is curious that the only part of our Dominions which has passed this reciprocal Statute is the only one in which there is any serious talk of secession.

I have read the discussions in another place; I cannot refer to them, but I hope that hon. Members will read them. Some may say that they were only lawyers' discussions, but if they will read a closely-reasoned and very carefully written letter which appeared in the "Times" last week, they will find that Lord Atkin, who speaks without any party bias, has arraigned this Government upon this Measure in a way which has certainly had no answer of any sort or kind from this Government. I base my request to this Government—and it is a request earnestly made—upon British history. We have never sought to interfere with the internal arrangements of our forces, but ever since the days of the Stuarts this country has been extremely careful to keep the military forces under the eye, the jurisdiction and the supervision of the civil courts. The day on which that principle is infringed in any way is going to be an ill one for this country, and nobody will welcome that infringement of our liberty more than some of the extremists who are to be found on the benches opposite. The National Government is forging a weapon for the extremists of the Socialist party. As one of those who believe in the history of our country and that one of its great principles is the supremacy of civil law, I urge the Government to insert in this Bill something which will put the Dominion forces in exactly the same position here that our own forces are in: the right to deal with their own internal discipline, but the right to exercise that jurisdiction subject to the supremacy of the civil courts, which may correct the military forces if they attempt to exceed the jurisdiction conferred upon them by this Bill.

8.15 p.m.


I congratulate the hon. and learned Gentleman who has just spoken on his discovery that liberty is in danger. Some of us on this side of the House have sometimes wished that there was even greater vigilance on the opposite side of the House in regard to personal liberty. That does not take away from the hon. and learned Gentleman the credit for having discovered that there is very great danger in this Bill. The Bill raises a very important matter. The case has been argued so cogently and eloquently, and from so many and unexpected quarters, that I should have thought the War Office would have taken the matter much more seriously than they have done hitherto. I cannot deal with the matter from the legal point of view, but it is very important to bear in mind that the Army Council, with its disciplinary regulations and its courts-martial, is modern compared with the civil courts of this country.

While the Financial Secretary to the War Office was speaking an amusing incident came to my mind. It related to a deputation which John Lilburn led in the stormy times of the Civil War. John Lilburn said, after having interviewed Cromwell or some of his lieutenants, "We went to ask for our rights and they gave us a thing called the Army Council." Though we would not call the Army Council a thing in these days, that story illustrates the shock that the idea of a super-organisation brought to the mind of the average man of that time. For years when the Army Act has been discussed in this House even Conservative Members have been very watchful lest that Act should contain anything that infringed unduly on personal liberty, or caused those who came under its influence to lose any chance of liberty.

The Army Act is not only in fact, but in the minds of the people of this country, subsidiary to the ordinary law. When attention has been drawn to the danger in this Bill it seems to me that the War Office might have given the subject a little more serious consideration. I expected that the Financial Secretary, having followed the Debate in another place and the correspondence on the subject, would have dealt at length with the important point raised. He did not even seem to recognise its importance. If the War Office wish to retain confidence in discipline, if they are not seeking to flout ordinary civil liberty, they will give the matter further consideration. I ask the learned Solicitor-General to give the House some reason for not facing this point, or to give a guarantee that it is to be reconsidered before the Bill is forced through the House.

8.19 p.m.


On the last occasion when this Bill was before us in its present form we had the advantage of hearing my hon. and learned Friend the Solicitor-General. He told us quite frankly that he was not proposing to tear up the Habeas Corpus Act. With that I entirely agree. There is no doubt about it that this Bill does not, in terms, affect the Habeas Corpus Act. What the Bill says is that if a commanding officer signs a certificate that a person has been properly convicted and so on, the Habeas Corpus Act shall not work, and I fail to see very much difference between the repeal of an Act and a provision in another Act which says that a particular Act is not to work in that case. In other words, in effect, whatever the terms are, this is a repeal to a partial extent of the Habeas Corpus Act. With some degree of surprise we heard my hon. and learned Friend the Solicitor-General state that that was only a small matter. Some of us on this side of the House, and some hon. Members opposite, do not consider that a partial repeal of the Habeas Corpus Act is a small matter.

There is another point that perhaps has been overlooked, and that is that there is no definition in the Bill of a "commanding officer." I believe there is no definition of a commanding officer in our own Army Act, but a commanding officer in the British Army may, in certain circumstances, be a young gentleman of about 18 years of age. If a force is de- tached and some distance away, it may be under the command of a young officer, no doubt an excellent officer—I am not saying a word against him—who may be only 18 or 19 years of age. By tearing a page out of a Field Service Note Book and writing a certificate on it, and signing his name, a young and comparatively inexperienced gentleman can paralyse the whole judiciary of this country, and that I am told by the Solicitor-General is only a small matter. Personally, I think it is rather a large matter.

There is in the Bill a definition of a "member." Clause 8 provides that: Member" in relation to a visiting force includes any person who is by the law of that part of the Commonwealth to which the force belongs subject to the naval, military or air force law thereof, and who, being a member of another force, is attached to the visiting force, or, being a civilian employed in connection with the visiting force, entered into his engagement outside the United Kingdom. Two points arise on that. If you have a British soldier who is attached to a visiting force in this country he thereby becomes a member of the visiting force. If he were tried before one of its service courts, notwithstanding that he is a British soldier the commanding officer who convened the court and confirmed the finding would, by a stroke of the pen, be enabled to deprive the British soldier of his right of appeal to the civil courts of this country. Precisely the same thing would apply in the case of a civilian who was employed in connection with visiting forces and who had entered into his engagement outside the United Kingdom. So, it is not only members of visiting forces qua soldiers who are being deprived of their rights. British soldiers in certain circumstances may also be deprived of their rights and, furthermore, civilians may be deprived of their rights.

In reply to the Financial Secretary to the War Office, may I say that it is a little unusual to hear the suggestion that the civil courts of this country are likely to or have any right to interfere with the discipline of the Army? They have never done anything of the kind. In case after case it has been pointed out by the civil courts that they will not interfere with the discipline of the Army. They would be the last to do anything to interfere in a matter the importance of which they fully recognise. Indeed I believe that in the Manual of Military Law the definition of discipline printed at length—probably the finest definition of discipline that ever was given—is that which was uttered by Lord Ellenborough. It ill becomes the Financial Secretary to the War Office to suggest that there is the slightest likelihood of British courts, even if they had the power, interfering with the discipline of the forces.

When I had the honour of addressing the House on this subject previously I pointed out also that there might be a case in which a member of a visiting force was charged with some offence against the civil law of this country. Assume such a man to be prosecuted at assizes or quarter sessions and acquitted. His commanding officer might arraign him for precisely the same offence before one of these service courts. The officer could then sign a certificate bringing into operation this objectionable provision and the British courts who had acquitted the man could not, in face of that certificate, go to the man's assistance and get him out of prison. As to the point which has been raised, with regard to the probability of a man being able to ask the Australian courts for instance to interfere, of course, from a practical point of view, he could not do it. There is no question about that. Moreover it would not be a difficult matter for our courts to go into the question and to find out whether a court as constituted under a Colonial Act was properly constituted. Not once but many times our courts have had to consider the effects of foreign laws and there is no difficulty about doing it. Why should they be assumed, as apparently they are assumed, not to be capable of expressing an opinion on a Colonial Statute? I would also remind the House that the question of whether a writ of Habeas Corpus should issue or not might be the subject-matter of an appeal to the Judicial Committee of the Privy Council. Every day of the week there are appeals from the Dominions and the Colonies to the Privy Council on such matters. Is it to be said that the Privy Council are not fit to construe a Colonial Statute? Such a position is ridiculous.

While I do not intend to propose that the Bill should not be read a Second time I hope that in the circumstances the Government will see their way to put in some words to meet our case. The matter could be dealt with quite easily in half-a-dozen words and if the Government do not know what words to use I shall be only too pleased to suggest words which would have the effect of meeting all the objections which we have raised to this Bill. It would be easy to amend the Bill in such a way as to leave the Habeas Corpus Act intact. It is significant that with the single exception, I believe, of my hon. and learned Friend the Solicitor-General there is not one lawyer in this House who has spoken otherwise than against the objectionable privilege contained in this Bill. In these circumstances I associate myself with my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord) and with hon. Members opposite on this point and I hope that the Government will see their way to amend a Bill to which at present there are such grave objections.

8.30 p.m.

The SOLICITOR-GENERAL (Sir Boyd Merriman)

The hon. Member for Chester-Le-Street (Mr. Lawson) invited the Government to consider and to reply upon the real importance of this matter and I invite the House to consider it for a moment or two from that aspect. As I see it, the real importance of this Bill is that it raises a conflict between two very important matters. On the one hand there are the full implications of Dominion status accorded to the self-governing Dominions and recognised in the Statute of Westminster; on the other hand there is what I persist in calling one small exception to the Habeas Corpus Act. That is the real implication of this Bill and that is the importance of passing it intact.

I yield to no hon. Member in recognition of the importance of the Habeas Corpus Act as a pillar of our liberties but we must look at this question or try to look at it with some sense of perspective. As far as my researches have led me in the history of the British Army there have only been three successful applications for writs of habeas corpus in the last 100 years and there has been none since the Army Annual Act was passed in its present form in 1881. Of those three instances two would be unaffected by this Bill. The third is the case referred to by the hon. Member for Broxtowe (Mr. Cocks) which I believe occurred in 1844. That is the sort of area in which we are discussing this matter. Let me say also that though a writ of habeas corpus is of course of great and abiding importance it is not of universal application. For example, if the hon. and learned Member for Norwood (Sir W. Greaves-Lord) or I were to incur the displeasure of this House and were committed by Mr. Speaker to the Clock Tower no writ of habeas corpus would issue so long as the House was in Session.


Does my hon. and learned Friend for one moment suggest that this House is a military court or anything akin to a military court?


Of course I do not, but I am pointing out that there are exceptions to the universality of the Habeas Corpus Act. What I am pointing out is true not only with regard to hon. Members of this House but, however arbitrary we were in enforcing our privileges on those silent spectators, no writ of Habeas Corpus would issue in their favour so long as the House was in session.


Is it not a fact that a writ of Habeas Corpus would issue but that the reply to it would be that the people concerned were detained by order of this House, which would be a good answer to it?


I invite my hon. and learned Friend, when the occasion arises, to go to the Strand and see—


It has been done.


But there is, after all, another illustration which is a little more akin to our purpose. I agree that you will find no Statute about it and that you will probably find no decided case, but it is, I think, a generally recognised principle of international law, which, as such, is recognised and would be recognised by the courts of this country, that when foreign troops come here or our troops go to a foreign State by the invitation of the Sovereign, the Sovereign does to that extent forgo his sovereignty over the visiting troops for the time being.


The hon. and learned Gentleman speaks of a principle of international law. Has it ever been applied except in two cases— one, where the foreign force was occupying territory, and, secondly, in the case of the American Army in this country, where it was provided for under special regulations under the Defence of the Realm Act?


Both those illustrations are, I think, perfect illustrations of what I was saying. With regard to the American troops, it was a considerable time after they came to this country that the Defence of the Realm Regulations were passed, and for this reason—if I had been allowed to finish what I was saying I should have stated it—that the principle of international law applies, as I understand it, to an organised body so long as it remains an organised body, and if they are here by our invitation, they are exempted from our sovereignty while they are in their own quarters or lines. Manifestly, there are difficulties of defining exactly what those limits may be; and manifestly when you had hundreds of thousands of American troops in this country, it was necessary to have something more definite than the international principle to which I am referring, and for that reason the Defence of the Realm Regulations were passed, though some time after the American troops had begun to arrive in this country.

It is said, "But do you really want to treat, does anybody contemplate treating, Dominion troops as if they were foreign troops? Does anyone contemplate treating the inhabitants of the Dominions as if they were the inhabitants of a foreign country?" Of course, no one ever dreams of such a thing. But there is all the difference in the world between treating the Dominions as if they were a foreign country and according to them privileges for which they happen to ask and which are indistinguishable from privileges in the same sense which may be enjoyed by foreign countries. By according a privilege which is the same privilege, you do not turn a Dominion into a foreign country. For example, we accord a fiscal independence which is indistinguishable in matters of taxation from that which a foreign country might employ against us; we allow them to regulate immigration into their own country in precisely the same way that any foreign country could restrict immigration from this country. That does not turn the Dominion into a foreign country, but is merely according it privileges which are indistinguishable from the rights enjoyed by foreign countries.

When it is said that nobody could suppose that in a matter like this you want to treat the Dominions as if they were foreign countries, it is precisely that for which the Dominions have asked. At the Imperial Conference, as I understand it, with this precedent of the American troops before them, the Dominions, one and all, asked that a Bill in that form should be passed reciprocally as between ourselves and each of the Dominions. It is, therefore, idle to speak as if we were insulting them by calling them foreign countries. We are according them, in accordance with the principles of full Dominion status, the same privilege in this particular as we should accord to foreign troops if they were visiting this country. Viewed in that way, I ask hon. Members to say that this is a very much graver matter than the mere exception of certain Dominion troops from the Habeas Corpus Act.

I say, quite frankly, having regard to some of the interruptions which have occurred in my short attempt to explain this matter, and to what has occurred on previous occasions, that I have very little hope of converting those who are prepared merely to look at this, as it were, through the legal microscope; but to those who are prepared to look at it, as it were, with the naked eye, I would say that I think that if we were to refuse the Dominions this which they have asked us to give them, we should run some risk of being accused of grandmotherly solicitude for those who are quite well able to take care of themselves and their own citizens.

8.42 p.m.


It is remarkable that the only members of the legal profession who refuse to look at this matter through the legal microscope are the Law Officers of the Crown. The learned Solicitor-General raised the point of the United States troops who were here during the War, and said it was a principle of international law that if foreign troops were quartered here, they should be subject only to their own law with regard to military tribunals, but I would like to put this question: Is it not a fact that if foreign troops were quartered in this country, a writ of Habeas Corpus would issue out in a case of this kind, and would be returnable? It seems to me a very strange compliment to the Dominions to say that we shall put a private soldier, serving in a Dominion regiment quartered in this country, in a worse position than a foreign soldier or a foreign subject who might happen to be staying within these islands. We are saying that our own subjects are going to be protected against any form of arbitrary imprisonment, and a foreigner is going to be protected in the same way, but the only person to whom this protection is to be denied is a member of a visiting force from a British Dominion.

The argument has been put up that this is a reciprocal arrangement, but it is one of the strangest arguments that I have heard during the short time I have been a Member of this House to say that, although we are doing something which is an infringement of liberty here, that is covered because something similar is being done in one or more of the Dominions. We were told by the Solicitor-General that there had been only three successful applications under the Habeas Corpus Act in cases of this kind. What is the reason for that? Is it not just this, that there has been this supervisory jurisdiction of the civil courts? Then we were told that the Dominions had asked for this Bill, but it seems to me that even that is not a sufficient reason for making this very grave infringement of the Habeas Corpus Act. I think I am the first Member from these benches who has spoken in this Debate. We have already bartered away our fiscal freedom to the Dominions, but why should we barter away some of our other liberties to the Dominions as well?

I want to protest against a Measure of this kind being brought forward in this way at the fag end of public business, at a time when very few hon. Members could have realised that it was likely to come and that the Measure which preceded it would have been disposed of in so short a time. If it had been realised that this Measure was to be discussed at this hour, there would have been a much larger attendance. I want to ask the Solicitor-General whether the Government will not at least agree to commit the Bill to a Committee of the whole House so that the point in Sub-section (3) of Clause 1 can have the full consideration of the whole of the Members of the House.

8.46 p.m.


Let us assume for the sake of argument that the intention of the Bill is merely to meet the request of the Dominions to our Government at the Imperial Conference. Even so, there still remains a point to which I should like a reply. It was raised by an hon. Member opposite. What is the position of a civilian who is attached to a visiting force? Does he lose his rights under Habeas Corpus? That civilian may be a British subject attached to a Canadian force. Does he, because he is attached to a visiting Canadian force, although still living in England, lose his rights under Habeas Corpus?

8.47 p.m.


I think that the answer to that is contained in the definition. If he were in the real sense of the word a member of any body, contingent or detachment of the naval, military and air forces of the particular Dominion, then he would, like the rest of the detachment, be covered by this Bill, but not otherwise. It is a matter for the Dominions concerned as to whether they allow civilians to be members of their Forces.


May I press that point a little further? I take it that for the pur-

pose of this Bill, so long as the individual British citizen is attached to the visiting force, he is no longer, in fact, a British citizen.


If the hon. Member is speaking of a British citizen in this country who is for the time being attached—


I was, certainly.


Then he would not be affected.

8.48 p.m.


I would like to supplement that question by asking if the hon. and learned Member is correct, because the definition of "Member" says: being a civilian employed in connection with the visiting force, entered into his engagement outside the United Kingdom. That surely means that if a British subject entered into an engagement outside the United Kingdom—[HON. MEMBERS: "An Englishman !"] Well, if an Englishman, and a civilian at that, enters into an engagement outside the United Kingdom with a visiting force, is he to be deprived of the rights of Habeas Corpus?

Question put, "That the Bill be now read a Second time."

The House divided: Ayes, 159; Noes, 30.

Division No. 42.] AYES. [8.50 p.m.
Acland-Troyte, Lieut.-Colonel Craddock, Sir Reginald Henry Hills, Major Rt. Hon. John Waller
Agnew, Lieut.-Com. P. G. Craven-Eills, William Hornby, Frank
Anstruther-Gray, W. J. Crossley, A. C. Horobin, Ian M.
Aske, Sir Robert William Cruddas, Lieut.-Colonel Bernard Horsbrugh, Florence
Atkinson, Cyril Davies, Maj. Geo. F. (Somerset, Yeovil) Howard, Tom Forrest
Baillie, Sir Adrian W. M. Dower, Captain A. V. G. Hudson, Capt. A. U. M. (Hackney, N.)
Baldwin, Rt. Hon. Stanley Duncan, James A. L. (Kensington, N.) Hume, Sir George Hopwood
Barclay-Harvey, C. M. Dunglass, Lord James, Wing-Com. A. W. H.
Barton, Capt. Basil Kelsey Eastwood, John Francis Jones, Sir G. W. H. (Stoke New'gton)
Beaumont, Hon. R.E.B. (Portsm'th, C.) Elmley, Viscount Kirkpatrick, William M.
Birchall, Major Sir John Dearman Emmott, Charles E. G. C. Lamb, Sir Joseph Quinton
Bird, Ernest Roy (Yorks., Skipton) Entwistle, Cyril Fullard Law, Sir Alfred
Blindell, James Erskine, Lord (Weston-super-Mare) Leckie, J. A.
Boulton, W. W. Fielden, Edward Brocklehurst Lees-Jones, John
Bower, Lieut.-Com. Robert Tatton Ford, Sir Patrick J. Lewis, Oswald
Bowyer, Capt. Sir George E. W. Fuller, Captain A. G. Liddall, Walter S.
Braithwaite, J. G. (Hillsborough) Ganzoni, Sir John Lovat-Fraser, James Alexander
Brass, Captain Sir William Gillett, Sir George Masterman Mabane, William
Brown, Col. D. C. (N'th'l'd., Hexham) Gluckstein, Louis Halle MacAndrew, Lieut.-Col. C. G. (Patrick)
Brown, Ernest (Leith) Goff, Sir Park MacDonald, Malcolm (Bassetlaw)
Brown, Brig.-Gen. H.C.(Berks., Newb'y) Graham, Sir F. Fergus (C'mb'rl'd, N.) McLean, Major Sir Alan
Buchan, John Greaves-Lord, Sir Walter McLean, Dr. W. H. (Tradeston)
Burnett, John George Greene, William P. C. Macmillan, Maurice Harold
Cadogan, Hon. Edward Grimston, R. V. Makins Brigadier-General Ernest
Campbell, Edward Taswell (Bromley) Gritten, W. G. Howard Manningham-Buller, Lt.-Col. Sir M
Campbell, Vice-Admiral G. (Burnley) Hacking, Rt. Hon. Douglas H. Margesson, Capt. Rt. Hon. H. D. R.
Caporn, Arthur Cecil Hanbury, Cecil Martin, Thomas B.
Cassels, James Dale Harbord, Arthur Mayhew, Lieut.-Colonel John
Castle Stewart, Earl Hartland, George A. Merriman, Sir F. Boyd
Clarke, Frank Harvey, Major S. E. (Devon, Totnes) Mills, Major J. D. (New Forest)
Cobb, Sir Cyril Headlam, Lieut.-Col. Cuthbert M. Mitchell, Harold P.(Br'tf'd & Chisw'k)
Conant, R. J. E. Heilgers, Captain F. F. A. Morris, Owen Temple (Cardiff, E.)
Cooper, A. Duff Heneage, Lieut.-Colonel Arthur P. Munro, Patrick
Nall-Caln, Hon. Ronald Ross Taylor, Walter (Woodbridge) Stanley, Hon. O. F. C. (Westmorland)
Nation, Brigadier-General J. J. H. Runge, Norah Cecil Stewart, J. H. (Fife, E.)
Peat, Charles U. Russell, Richard John (Eddisbury) Stourton, Hon. John J.
Penny, Sir George Sandeman, Sir A, N. Stewart Strauss, Edward A.
Percy, Lord Eustace Sanderson, Sir Frank Barnard Sueter, Rear-Admiral Murray F.
Petherick, M. Savery, Samuel Servington Thomas, James P. L. (Hereford)
Peto, Sir Basil E. (Devon, B'nstaple) Selley, Harry R. Thomson, Sir Frederick Charles
Peto, Geoffrey K. (W'verh'pt'n, Bilston) Shaw, Helen B. (Lanark, Bothwell) Touche, Gordon Cosmo
Powell, Lieut.-Col. Evelyn G. H. Shaw, Captain William T. (Forfar) Tryon, Rt. Hon. George Clement
Pybus, Percy John Shepperson, Sir Ernest W. Ward, Lt.-Col. Sir A. L. (Hull)
Ramsay, Capt. A. H. M. (Midlothian) Skelton, Archibald Noel Ward, Irene Mary Bewick (Wallsend)
Ramsay, T. B. W. (Western Isles) Slater, John Ward, Sarah Adelaide (Cannock)
Ramsbotham, Herwald Smith-Carington, Neville W. Wedderburn, Henry James Scrymgeour-
Rankin, Robert Sm'thers, Waldron Wells, Sydney Richard
Ray, Sir William Somervell, Donald Bradley Wilson, Clyde T. (West Toxteth)
Reed, Arthur C. (Exeter) Somerville, Annesley A. (Windsor) Windsor-Clive, Lieut.-Colonel George
Reid, James S. C. (Stirling) Sopor, Richard Womersley, Walter James
Reid, William Allan (Derby) Sotheron-Estcourt, Captain T. E. Young, Rt. Hon. Sir Hilton (S'v'noaks)
Robinson, John Roland Southby, Commander Archibald R. J.
Ropner, Colonel L. Spencer, Captain Richard A. TELLERS FOR THE AYES.—
Rosbotham, Sir Samuel Stanley, Lord (Lancaster, Fylde) Sir Victor Warrender and Dr. Morris-Jones.
Banfield, John William George, Megan A. Lloyd (Anglesea.) Lansbury, Rt. Hon. George
Batey, Joseph Greenwood, Rt. Hon. Arthur Lawson, John James
Cocks, Frederick Seymour Grenfell, David Rees (Glamorgan) McEntee, Valentine L.
Cripps, Sir Stafford Griffith, F. Kingsley (Middlesbro', W.) Maxton, James
Daggar, George Hall, F. (York, W.R., Normanton) Milner, Major James
Davies, David L. (Pontypridd) Hall, George H. (Merthyr Tydvil) Owen, Major Goronwy
Davies, Rhys John (Westhoughton) Harris, Sir Percy Parkinson, John Allen
Edwards, Charles Janner, Barnett Williams, Thomas (York., Don Valley)
Evans, David Owen (Cardigan) Jenkins, Sir William
Foot, Dingle (Dundee) Jones, Henry Haydn (Merioneth) TELLERS FOR THE NOES.—
Foot, Isaac (Cornwall, Bodmin) Jones, Morgan (Caerphilly) Mr. Duncan Graham and Mr. Tinker.

Bill read a Second time.


I beg to move, "That the Bill be committed to a Committee of the Whole House."

Question put, "That the Bill be committed to a Committee of the Whole House."

The House divided: Ayes, 30; Noes, 155.

Division No. 43.] AYES. [8.59 p.m.
Banfield, John William Graham, O. M. (Lanark, Hamilton) Lawson, John James
Batey, Joseph Greenwood, Rt. Hon. Arthur McEntee, Valentine L.
Cocks, Frederick Seymour Grenfell, David Rees (Glamorgan) Maxton, James
Cripps, Sir Stafford Hall, F. (York, W.R., Normanton) Milner, Major James
Daggar, George Hall, George H. (Merthyr Tydvil) Owen, Major Goronwy
Davies, David L. (Pontypridd) Harris, Sir Percy Parkinson, John Allen
Davies, Rhys John (Westhoughton) Janner, Barnett Tinker, John Joseph
Edwards, Charles Jenkins, Sir William Williams, Thomas (York. Don Valley)
Evans, David Owen (Cardigan) Jones, Henry Haydn (Merioneth)
Foot, Isaac (Cornwall, Bodmin) Jones, Morgan (Caerphilly) TELLERS FOR THE AYES.—
George, Megan A. Lloyd (Anglesea) Lansbury, Rt. Hon. George Sir W. Greaves-Lord and Mr. Dingle Foot.
Acland-Troyte, Lieut.-Colonel Cadogan, Hon. Edward Fuller, Captain A. G.
Agnew, Lieut.-Com. P. G. Campbell, Edward Taswell (Bromley) Ganzoni, Sir John
Anstruther-Gray, W. J. Caporn, Arthur Cecil Gillett, Sir George Masterman
Aske, Sir Robert William Cassels, James Dale Gluckstein, Louis Halle
Atkinson, Cyril Castle Stewart, Earl Goff, Sir Park
Baillie, Sir Adrian W. M. Clarke, Frank Graham, Sir F. Fergus (C'mb'rl'd, N.)
Baldwin, Rt. Hon. Stanley Colfox, Major William Philip Greene, William P. C.
Barclay-Harvey, C. M. Conant, R. J. E. Grimston, R. V.
Barton, Capt. Basil Kelsey Cooper, A. Duff Gritten, W. G. Howard
Beaumont, Hon. R.E.B. (Portsm'th,C.) Craddock, Sir Reginald Henry Hacking, Rt. Hon. Douglas H.
Birchall, Major Sir John Dearman Craven-Ellis, William Hanbury, Cecil
Blindell, James Crossley, A. C. Harbord, Arthur
Bossom, A. C. Cruddas, Lieut.-Colonel Bernard Hartland, George A.
Boulton, W. W. Davies, Maj. Geo. F. (Somerset, Yeovil) Harvey, Major S. E. (Devon, Totnes)
Bower, Lieut.-Com. Robert Tatton Duncan, James A. L. (Kensington, N.) Headlam, Lieut.-Col. Cuthbert M.
Bowyer, Capt. Sir George E. W. Dunglass, Lord Heilgers, Captain F. F. A.
Braithwaite, J. G. (Hillsborough) Eastwood, John Francis Heneage, Lieut.-Colonel Arthur P.
Brass, Captain Sir William Elliston, Captain George Sampson Hills, Major Rt. Hon. John Waller
Brown, Col. D. C. (N'th'l'd., Hexham) Elmley, Viscount Hornby, Frank
Brown, Ernest (Leith) Emmott, Charles E. G. C. Horobin, Ian M.
Brown, Brig.-Gen. H.C. (Berks., Newb'y) Entwistle, Cyril Fullard Horsbrugh, Florence
Buchan, John Erskine, Lord (Weston-super-Mare) Howard, Tom Forrest
Burnett, John George Fielden, Edward Brocklehurst Hudson, Capt. A. U. M. (Hackney, N.)
Hume, Sir George Hopwood Percy, Lord Eustace Smith-Carington, Neville W.
James, Wing-Com. A. W. H. Petherick, M. Somervell, Donald Bradley
Jones, Sir G. W. H. (Stoke New'gton) Peto, Sir Basil E. (Devon, B'nstaple) Somerville, Annesley A. (Windsor)
Kirkpatrick, William M. Peto, Geoffrey (W'verh'pt'n, Bilst'n) Soper, Richard
Lamb, Sir Joseph Quinton Powell, Lieut.-Col. Evelyn G. H. Sotheron-Estcourt, Captain T. E.
Law, Sir Alfred Pybus, Percy John Spencer, Captain Richard A.
Leckie, J. A. Ramsay, Capt A. H. M. (Midlothian) Stanley, Hon. O. F. G. (Westmorland)
Lees-Jones, John Ramsay, T. B. W. (Western Islea) Stewart, J. H. (Fife, E.)
Lewis, Oswald Ramsbotham, Herwald Stourton, Hon. John J.
Liddall, Walter S. Rankin, Robert Strauss, Edward A.
Lovat-Fraser, James Alexander Ray, Sir William Sueter, Rear-Admiral Murray F.
Mabane, William Reed, Arthur C. (Exeter) Thomas, James P. L. (Hereford)
MacAndrew, Lieut.-Col. C. G. (Partick) Reid, Capt. A. Cunningham Thomson, Sir Frederick Charles
MacDonald, Malcolm (Bassetlaw) Reid, James S. C. (Stirling) Thorp, Linton Theodore
McLean, Major Sir Alan Reid, William Allan (Derby) Touche, Gordon Cosmo
McLean, Dr. W. H. (Tradeston) Robinson, John Roland Tryon, Rt. Hon. George Clement
Macmillan, Maurice Harold Ropner, Colonel L. Ward, Lt.-Col. Sir A. L. (Hull)
Makins, Brigadier-General Ernest Rosbotham, Sir Samuel Ward, Irene Mary Bewick (Wallsend)
Manningham-Buller, Lt.-Col. Sir M. Ross Taylor, Walter (Woodbridge) Ward, Sarah Adelaide (Cannock)
Margesson, Capt. Rt. Hon. H. D. R. Runge, Norah Cecil Warrender, Sir Victor A. G.
Martin, Thomas B. Russell, Richard John (Eddisbury) Wedderburn, Henry James Scrymgeour-
Mayhew, Lieut.-Colonel John Sandeman, Sir A. N. Stewart Wells, Sydney Richard
Merriman, Sir F. Boyd Sanderson, Sir Frank Barnard Wilson, Clyde T. (West Toxteth)
Mills, Major J. D. (New Forest) Savery, Samuel Servington Windsor-Clive, Lieut.-Colonel George
Morris, Owen Temple (Cardiff, E.) Selley, Harry R. Womersley, Walter James
Munro, Patrick Shaw, Helen B. (Lanark, Bothwell) Young, Rt. Hon. Sir Hilton (S'v'noaks)
Nail-Cain, Hon. Ronald Shaw, Captain William T. (Forfar)
Nation, Brigadier-General J. J. H. Shepperson, Sir Ernest W. TELLERS FOR THE NOES.—
Peat, Charles U. Skelton, Archibald Noel Commander Southby and Dr. Morris-Jones.
Penny, Sir George Slater, John

Question, "That this House do now adjourn," put, and agreed to.

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