NEW CLAUSE.—(Saving for rights of the Crown.) (Hansard, 24 July 1940)

§ Major Fyfe
I beg to move, "That the Clause be read a Second time."
This new Clause has as its purpose the maintenance of the powers of establishing martial law should the necessity arise, and the clarifying of the position so that this Bill does not impair those powers in any way. There is no real divergence of opinion upon this point, because the 895 learned Attorney-General said in his speech on Second Reading, in explaining what martial law is: They have the fullest power under the law to take all measures necessary for that purpose, and nothing in this Bill or in any Regulations that will be made under it will limit the common law power, based on military needs and necessities."—[OFFICIAL REPORT, 16th July, 1940; col. 138, Vol. 363.] In my opinion, it is important that that expression of opinion should be given statutory form. It may well be, especially after the discussion which has been so necessary upon many aspects of this Bill, that the military commander, on whom alone the responsibility lies of having to establish martial law in a case of invasion, will be rather bewildered and bemused by the effect of this legislation and the suggested effects which have emerged from the discussion. Therefore, when we are putting a potentially heavy responsibility on the military commander, I think we ought to clear the path for him. My right hon. and learned Friend may have some objection to the Clause from the technical aspect, but I would remind him that we are now dealing with a Bill declaratory of the powers of the original Act. In the original Act, in Clause 9, there are the first lines of my suggested Clause. Therefore, it was deemed necessary when the original Act was passed to preserve these Prerogative or Common Law rights which my right hon. and learned Friend admits and has declared to exist. I have added these words: or the common law rights of the Crown and its servants in the case of invasion, because my right hon. Friend referred to them as Common Law rights, not as Prerogative rights, and in doing so was following very high legal authority, as he and I are well aware. That is the technical position, and I do not think it presents any difficulty at all; but the important point is that Members in every part of the Committee have expressed the view that they do not want to handicap in any way the military commander in doing his job in the forward areas, and after the confusion which reigned here a little time ago on the provisions of this Bill I am sure it is most comprehensible to the Committee that that confusion might be shared by military commanders outside. I therefore ask my right hon. Friends for once to relax that adamant and stone-walling attitude that we have 896 seen for so many hours and to let this most innocuous Clause form part of the Measure.

§ The Attorney-General
I attach so much importance to the principle of what are called Common Law rights of military authorities and, indeed, of all members of the population, that I should deplore the insertion of this new Clause. Its insertion would clearly suggest that without the insertion of some words of this kind the Common Law rights might have been affected.

§ Major Fyfe
It is a declaratory Bill.

§ The Attorney-General
The Common Law rights which apply to the servants of the Crown and, as my hon. Friend knows, apply to all members of the population, are the right to repel force by force and the right to take such measures to meet invasion or attack as military necessity dictates. That is an absolutely overriding power, not only a power, but a duty, and it is fantastic to suggest that this or any other Act of Parliament could derogate from that primary right and duty based upon necessity.

§ Colonel Arthur Evans (Cardiff, South)
If in those circumstances the competent military authority makes a mistake, is he liable to be proceeded against subsequently by the persons concerned?

§ The Attorney-General
That point is a little outside the matter of the Clause, but if in the exercise of Common Law rights he does what would otherwise be a wrong, whether it is interference with life, limb or property, he can be called upon, after the military proceedings are over and subject to an Indemnity Act, to justify his action and justify the military necessity in the ordinary courts. The question may be asked: Why, if you think it is undesirable to insert words which suggest that this overriding power might be cut down, do you refer in the original Act to the Prerogative power? That, I think I can explain. The original Emergency Powers Act enabled Orders-in-Council to be made over the whole field, provided that they were for purposes set out, the efficient prosecution of the war, the Defence of the Realm, the maintenance of essential services and so on. It might well have been suggested that a statutory power to issue Orders-in-Council auto- 897 matically restricted the Prerogative power to make Orders-in-Council in the same field, and it was therefore thought right to insert those safeguarding words. I do not think it is possible to suggest that the Common Law power, or duty, to resist invasion, based as it is on military necessity and the necessity of the country's need at the moment, could be derogated from by any Act of Parliament, whether declaratory or not. To myself, it is vital that that principle should be preserved, and that we should not insert anything in any Bill which might create doubt about it.
I invite hon. Members to look at these words and imagine that they are in the Act. Anybody reading the Act would say that Parliament must have thought that, but for those words, it might have been suggested that the setting up of these courts was in derogation of the powers of the Common Law relating to invasion and that, therefore, Parliament had recognised the possibility of a Statute making provision of this kind, derogating by implication from those powers. That would be a most vicious implication. I believe it is quite unnecessary, and would do something to produce a situation which my hon. and learned Friend does not want in the least, which would suggest that other Statutes in which these words had not been placed, their provisions would on this interpretation, derogate from the military power under Common Law.
Let me give an example. There is power under the Defence Regulations for the military to go on land and do certain acts. Broadly speaking, they can, under the Defence Regulations, go on land and do certain acts, and that power may be exercised in the absence of military necessity. If military necessity arises, you might be able to operate under that power, and you would not have to rely on the Common Law power of necessity. Circumstances might arise in which you had to enter on the land and do an act in times of military necessity, quite apart from any formality or procedure laid down by that Regulation. It is unnecessary to have words like these to say that the powers conferred by the Regulations were not in derogation of Common Law powers. The Committee should resist the putting in of words suggesting that a statutory power of that kind can cut down the Common Law power based on necessity. I hope very much that I have 898 convinced my hon. and learned Friend that his words are unnecessary and would do harm, and I hope that he will not press his proposed new Clause.

§ Major Fyfe
I should like to say one or two words to my right hon. and learned Friend, in taking the argument a little further. I listened with great interest this afternoon to the Home Secretary pleading with the Committee to be lenient on one aspect of the Bill. He was going to introduce an Amendment which might provide that the Prerogative powers of mercy were not impaired at all by the Bill. That is essentially different from the point which I am now putting. That was in regard to an Amendment to be moved by my right hon. Friend and not by someone from the back benches. It is rather difficult to see why there should be an objection to a Clause which makes it clear that the Prerogative powers are not impaired when my right hon. Friend thinks it necessary to introduce an Amendment to deal with the Prerogative powers.

§ The Attorney-General
I thought I made it clear that my objection to the proposed new Clause is in regard to the Common Law powers. I quite agree that you need to safeguard the Prerogative powers, and we have done that already in the original Act, which will be read with this Bill. I hope I have made my meaning clear. My argument referred to the Common Law powers.

§ Major Fyfe
Taking my right hon. and learned Friend on the ground which he chooses, let me examine the position for a moment. One of the rights for which the Common Law exists is to preserve order, and one of the methods used consistently was the institution of military courts, that is, courts established after a proclamation of martial law. That is one of the modes of machinery which have actually been used in the application of martial law. We have then established a series of courts which are sufficiently analogous to other courts to require a Preamble to this Bill. Now my right hon. and learned Friend says that it is absolutely clear that the new system of courts cannot be imagined or mistaken or by any means thought to interfere with the other system which may 899 be necessary under martial law. I can only hope that if this adamant attitude continues, the perplexed military commanders will add to their other occupations during these difficult times the perusal of my right hon. and learned Friend's speeches, instead of having the assistance of a clear Act of Parliament.
Question, "That the Clause be read the Second time," put, and negatived.