§ Considered in Committee. [Progress 15lh May].
§ [SIR DENNIS HERBERT IN THE CHAIR.]
§ Clause II — (Finality of decisions of Maritime Courts.)
§ Mr. Mander (Wolverhampton, East)
I beg to move, in page 9, line 16, to leave out from "may," to "apply," in line 17.
The possibilities of an appeal for any person convicted under this Measure ought to be made as easy and simple as possible. I do not think, as I said on a previous occasion, that the appeal arranged for is the best possible, but it is a definite appeal on the subject of the jurisdiction of a British court. It is of great importance that the appeal of a foreign subject who claims to be of a different nationality from the court that has possibly held him to be of their nationality and called upon him to be conscripted to serve on a ship, should be heard and decided by some higher tribunal. That is provided for, but why not make it as simple as possible? What is the reason for putting obstacles in the way? This foreigner, this poor person, as he undoubtedly will be, will have to get the leave of the maritime court or of the High Court. We all know the expense likely to be involved in obtaining the leave of the High Court to appeal. It would be much fairer and would give satisfaction to those who are anxious to see the appeal made as easy to work as possible, if these words were left out. I hope that the Solicitor-General will agree on behalf of the Government to their omission, and thereby make it as simple as possible for persons who may find themselves in a most difficult position as foreigners on British soil to have their cases heard and obtain their rights under international law.
§ Mr. Silverman (Nelson and Colne)
I support the Amendment. It would be wrong, if a person who complained that 1483 the maritime court had exceeded its jurisdiction or had no jurisdiction whatever to try him should need to go to that very court for leave to appeal against its decision. It puts the High Court itself in a. difficulty. If a man had been refused leave to appeal by the maritime court the only way he could get before the High Court would be by making a preliminary application in the High Court for leave to make his application. He would have to begin by explaining that the maritime court, whose jurisdiction he was challenging, had refused him leave to go to the High Court. The High Court will be tempted, I think, in those circumstances, to refrain from interfering with the discretion of the maritime court. In other words, a man would have to show some very good reason before he could get his application heard at all. I suggest that this is a wrong use of the necessity for getting leave. If a man says, "I have been tried by the court, I have been convicted, I have been sentenced by a court which has no jurisdiction whatever to deal with my case at all," and you give him the right to challenge that in the High Court, you ought to give him an absolute right and not make it dependent on the leave or licence of the court whose jurisdiction is challenged. I think that that is a simple and a reasonable proposition, and I hope that the Solicitor-General will accept it.
§ The Solicitor-General (Sir William Jowitt)
We do not see how we can possibly accept this Amendment. The object of this Bill is to harmonise two different concepts—first, that of justice, and, secondly, that of speed in decision. It may not often happen, but it may happen sometimes that people will be anxious to seek every excuse for delay and if we allow anybody, automatically, to appeal to the High Court, people may in some cases be tempted to do so not because they expect any relief at the hands of the High Court, but because they realise that by the time they have gone to the High Court, have made their application and have had their appeals heard, that very procedure will secure the delay which perhaps they want.
§ The Solicitor-General
Delay in carrying out the sentence, or in serving on a 1484 ship. Therefore, we do not see our way to accept this Amendment. The hon. Member who moved the Amendment will see in Clause 11, paragraph 3 (b), that we have expressly provided that in determination of the law, a decision of a maritime court has to be final. How idle it would be to allow these people to think they have an unrestricted right of appeal, if they go up to a High Court only to be told, "This is all a misapprehension. It is obviously a matter of law and we cannot hear you." It is only when matters of fact arise that this appeal comes into being, and we think it better, in a man's own interests, not to raise false hopes. If a man has a prima facie case a maritime court will give him his leave. Take for instance the writ of habeas corpus. If you go to a High Court and show some kind of prima facie case and apply for your rule, the Court, if it thinks you have something which merits consideration, says, "You may have your rule." You cannot just go to a High Court and ask for it. The normal practice is to go to the High Court and show some grounds for thinking that the inferior court has exceeded its jurisdiction. If you make out some showing for a prima faciecase yon get your ruling, but to give an unrestricted right of appeal would not be in accordance with precedent. We think it is much better to follow the established practice which has been carried out down the years and has worked out very well.
§ Mr. Mander
I cannot say that I am moved by what the Solicitor-General has said. I think it would be much better to adopt the line of an international court of appeal. But in view of the fact that he does not see his way on behalf of the Government to make any concession, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.
§ CLAUSE 12. — (Indemnity for acts done in purported exercise of jurisdiction.)
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
§ Mr. Shinwell (Seaham)
I feel that this Clause ought, to be deleted from the Bill. I should like to hear from the Solicitor-General some justification for it, and until my right hon. and learned Friend fortifies the Clause by some argument, I am bound 1485 to express opposition to it. My right hon. and learned Friend has just told the Committee that the essential need with regard to this Bill is speed, and with that view I concur, but while speed is the essence of the case and while those persons who are implicated should be arrested and sentenced summarily, at the same time nobody has any desire to see that speed converted into injustice. This Clause provides, in effect, for absolute indemnification. There is no modification of the principle, as far as I can ascertain. It will be noted, first, that an accused person, when sentenced, has no right of appeal. That is a provision to which special attention should be directed. It may happen, and indeed it is pretty certain that it will happen in the course of the confusion arising from the Bill and the interest of the Allied Governments concerned in the matter, that persons may be arrested by other persons acting on the authority of Allied Governments. The Allied Governments may have no standing in the case whatever. For example, a Norwegian seaman might be haled before a maritime court under the jurisdiction of the Dutch Government, or vice versa, and if the person concerned were sentenced and then it was discovered that the court had acted without any standing and that the decision was ultra vires of the Act, there would be no means of redress. That is the simple point. Nobody wants to embarrass the Allied Governments more than is essential in the circumstances and we recognise their special difficulties, but we must also appreciate the special difficulty in which many seafaring persons serving on foreign vessels may find themselves.
The short point which I want to put to the Solicitor-General is this. Some deterrent is necessary to restrain Allied Governments acting under this provision from arresting anybody and everybody, as they may well do in the circumstances. It may be that the Solicitor-General will be able to satisfy me on this issue and show that it is not intended that these courts shall have complete indemnification and that at some point it may be possible to place some limitation on their functions. If so, I shall be appeased. If not, it seems to me that we ought to ensure that some modification of their powers is effected, and if there is no other alternative and if the Solicitor-General cannot give such an 1486 assurance, it seems to me that the Clause ought to be deleted.
§ Mr. Gallacher (Fife, West)
I also support the Amendment. This Clause, in itself, is a demonstration of the bad character of this Government, because only a very bad Government would require such a bad Clause. There has been some talk about the sovereign rights of Allied Governments not being interfered with, but there have been counterfeit sovereigns and bad sovereign rights. This is a case of the worst kind of sovereign rights being given to Allied Governments, because the Minister is now saying that the Government have decided, if the Allied Governments set up these maritime courts, that these courts can do no wrong. There used to be a lot of talk about "The King can do no wrong," but never did I think we should reach a situation where the Minister, with all his past, good and bad, would come to the House of Commons seeking to establish maritime courts with the old vexatious idea that they can do no wrong.
Suppose a Norwegian, Dutch or Greek seaman is picked up when he comes into port, after having been through the most terrible hazards. That man may have been with a convoy, or perhaps his ship has been set on fire and he has been battling against the flames. Perhaps he may have been adrift for many days, or has been urged by his engineer to continue with his work, so that eventually the ship can stagger into port. After days and nights of this kind of thing that seaman is completely worn out. He gets off the ship hoping for a little peace and quiet, but he is picked up and taken before a maritime court and sentenced to one month's imprisonment. The ship has to sail short-handed—which is a great help in the Battle of the Atlantic—and then, after he has served one month's imprisonment and lost one month's service and pay, it is discovered that the court had no standing. Is that man not to be given any consideration? Suppose, in similar circumstances a man is brought before a maritime court and in order that the ship may not sail short-handed, a fine of £25 or £50 is imposed. That amount will be taken off his wages and then, after several months, it may be discovered that the court has no standing. Is no consideration to be given to that man? Of course, if he had paid only half the fine 1487 at the time when it was discovered the court had no standing, he would not have to pay any more, but there is nothing to compel the court to compensate him for what he has paid or wrongfully endured.
A Bill containing a Clause of this kind should not be accepted, and it is very unfortunate that some Members of the Labour party are so much more concerned with just following the Government, no matter what dangerous path the Government may tread, than with the interests of the men themselves. There are some who have justified the existence of the Labour party by careful watch and criticism of the line that the Government are taking. It is a pity that others have not followed their example, because this Bill is typical of the very great evil that can be done to the country and to a section of our real Allies, the men who are sailing the ships in the dangerous and hazardous conditions of to-day. It is shameful that there should be such concern for the maritime courts as is expressed in this Clause and such an absolute lack of concern for the men who are doing the real job.
§ Mr. A. Bevan (Ebbw Vale)
I am very worried indeed about this Clause. I am rather disappointed that the hon. Member for East Wolverhampton (Mr. Mander) did not press his previous Amendment. He puts Amendments on the Paper so frequently, and runs away from them so hurriedly, that I shall have to treat them in future with greater frivolity. The last Amendment which he withdrew gave the right to a sailor to appeal to the High Court without the permission of the maritime court where he considered that the maritime court had exceeded its jurisdiction. That has a direct bearing upon this Clause. Almost all the criticism that has come from this side has been that it is difficult to decide who comes under the jurisdiction of the maritime courts. If anyone says this indemnification is limited, I say it is limited to just that part of the Bill which gives rise to the greatest doubt, that is, the doubt about who in fact ought to come under these courts.
I shall be interested to learn how often Clauses of this kind are introduced into Bills. This seems a most astonishing Clause. Is it a fact that it is a standard Clause? I am not a lawyer and it may be that I am arguing on something that I know nothing about. This may be a 1488 standard Clause which is introduced into a large body of legislation. If so, I shall have to withdraw what I have said, but I am very frightened, because if this kind of power is to be given to the court, it is the very essence of totalitarianism. Any policeman can arrest a person under a warrant and bring him before a court; the court can sentence him, and the House of Commons says, "If the court has made a mistake, the man has no right of action against it." The individual just disappears out of the picture, and no individual rights remain. Only court rights and State rights are left in such a picture as that.
It is surely the very essence of democratic legislation that a court shall be subject to an action against it if it has exceeded its rights under the law. The right hon. and learned Gentleman says to the Committee to-day, "A perfectly innocent seaman can be brought up before this court and can be subjected to its punishments and penalties, and if it is found that the court has made a mistake, no action lies by the individual against it." I do not know what my hon. Friend thinks about that, but if he persists in that view, I shall be happy to divide against the Government on it. We cannot possibly allow the court to have this power, because it would make it an irresponsible court. The individual would be deprived of all rights, and the court could act irresponsibly and sentence anybody they liked, and the person would have no rights. It is a complete abrogation of citizen rights. I know that my hon. Friend the Member for Nelson and Colne (Mr. Silverman) will develop an argument concerning the position of English subjects, and I will not trespass upon his argument.
We are really concerned about citizens who are not English subjects and who are temporarily enjoying our hospitality, and we ought not to hand them over to principles which would be repugnant in the case of British subjects. If it were to be held that a British subject ought not to be deprived of his rights, and if that is a principle of universal application, why should it be withheld from the subjects of another Power who enjoy our hospitality? Why should we not give them the protection of those principles that we ourselves consider to be so important? Unless the Solicitor-General has a sub- 1489 stantial argument in favour of the Clause which I cannot think of, it will be desirable for us to oppose it. There is nothing in the Bill so far which prevents the expedition of a sentence. Indeed on the last Amendment the right hon. and learned Gentleman said that he could not accept it because it would hold up the punishment of the person. The punishment, therefore, is to go forward at once, but if it has been wrongly imposed, he now says that the court which has imposed it is to be immune and that the individual who has suffered it is to have no rights whatever. That is a violation of all the principles underlying the British system of jurisprudence, and I hope that the right hon. and learned Gentleman will give us good grounds for the Clause.
§ The Solicitor-General
I think there is a good deal of misapprehension and misunderstanding on this matter, and I am very glad the hon. Member has raised it, because it is desirable that it should be cleared up. The power which we are seeking in this Clause is, of course, a power which, in any system of law, is absolutely necessary for the functioning of the courts. Judges are human; judges may make mistakes, however hard they try not to do so; indeed, they must make mistakes. If as a result of what happened in a superior court a judge was liable to an action for damages for wrongful imprisonment, for whatever sentence he had passed, it would be absolutely impossible to get anyone to accept the onerous position of being a judge. What happens in our own country? Suppose that by a judicial error a man is sentenced to prison and serves part of his sentence, but subsequently gets his case before a higher tribunal and a higher tribunal says, "The whole thing was a mistake and the judge was wrong in this, that or the other respect." What happens? The sentence is quashed. But the individual has no sort of right of redress—none whatever. All he can do, all that he has done in some celebrated cases which we all remember, is to exercise some pressure to get the Government of the day, as a matter of grace, to grant him some gratuity out of the public funds.
The hon. Member for Ebbw Vale (Mr. A. Bevan), who has been very helpful on this Bill, will realise on reflection that the redress, if there is to be redress, must 1490 come out of public funds and cannot possibly come out of the pocket of the unfortunate judge who happened to make the error. That is inherent in our system of law and I believe it is inherent in every system of law. I do not profess to be an expert on the matter, but I have no doubt that even in the Soviet Union if a judge makes an error which is reversed on appeal there are provisions which say that the trial judge is not liable to compensate the unhappy person who has been the victim of the error. It must be so in every system of law.
§ Mr. Shinwell
Are we not at cross purposes? Is not the point this: not that the court has been responsible for an error of judgment and has imposed a sentence wrongfully, but that the question has arisen whether the court had jurisdiction, whether, say, a Norwegian court has acted in a case which ought to have been dealt with by the court of another country?
§ The Solicitor-General
That, of course, is the point. If the court acts with jurisdiction there can be no question, because the court has acted rightly. It is only in cases where the court acts without jurisdiction that the High Court can reverse that decision as having been given outside the court's jurisdiction. The court may apply its mind to this question of jurisdiction and do the very best it can to determine the problem and yet come to an erroneous conclusion. It very often happens that the court makes an error about jurisdiction. It is one of the commonest reasons why a superior court has to reverse the decision of an inferior court. If we did not have this Clause, every unhappy judge of this court who, on my hypothesis, has applied his mind to the problem fairly and honestly—of course I am not dealing with other cases—and really thinks he has jurisdiction and acts on that assumption, would find himself responsible for damages if a superior court found that he had made an error.
§ The Solicitor-General
No, it would not. The effect of this Clause is to protect an individual who, otherwise, would be liable in damages for false imprisonment. But for this Clause, any judge of a maritime court, notwithstanding the fact that he had honestly and sincerely applied his mind to the question and had honestly and sincerely come to the conclusion that he had jurisdiction, and upon that conclusion had based his judgment, if a superior court takes the view that he was in error—and this is a very difficult thing to determine with certainty—would be liable for damages. We do not want this Clause in our jurisdiction because it is an inherent part of our common law. It is there, without being written in. The only cases in which you want this sort of Clause are those in which a foreign court is functioning on our territory. Whenever we have had a foreign court functioning on our territory we always have had this sort of Clause.
There are two striking illustrations. One is the Visiting Forces Act. The hon. Member will be aware that we sometimes get visiting forces here and there are, of course, disciplinary powers in respect of those visiting forces. He will find that there is the same sort of provision, but rather stronger, protecting courts sitting on our territory and using those disciplinary powers, from the consequences of their mistakes. There is a similar provision in the Allied Forces Act of last year. That provision is stronger. It provides that the court is to be conclusively deemed to have jurisdiction. My answer to the hon. Gentleman is that, just as it is an inherent part of any judicial system whose courts are operating on its own territory that the judges are protected in the event of mistake—albeit that it is a mistake of jurisdiction, one of the commonest types of mistake—so here, when we have a foreign court operating on our territory, we must give it the same protection as our own courts have enjoyed from time immemorial.
If injustice is done, and it sometimes has been done here, the appropriate remedy has been found to be to put pressure upon the Government and to ask whether they will not intervene, as an act of Royal clemency, oddly enough, although the man may have been completely innocent. Also, the Foreign Office here will use its best endeavours to keep in touch with the foreign Governments. 1492 Those foreign Governments, believe me, are most anxious to carry out their duties and their functions in a way which will win the approval not only of their own people but of our people. All I am seeking to do by the Clause is to put these foreign tribunals in exactly the same position as our own tribunals have been here. If we did not have this Clause, any judge who might have been in error would be subject to personal responsibility. I trust that the hon. Member who spoke last will see the need for this Clause. I would emphasise one point. We attach a condition, of course, in these very important words:anything done in good faith.Obviously if you can show a case for thinking that judges were not acting honestly and making an honest mistake, but were deliberately invoking a jurisdiction which they knew they did not possess, it is proper that they should be liable to action for damages.
§ Mr. Silverman
We are very grateful to the Solicitor-General for the way in which he has put his argument in support of the Clause, but I suggest that he has failed to meet the argument that was directed to him. He has pursued his argument as though the only persons protected by the Clause were the court. That is not so. The Clause provides thatanything done in good faith and in purported exercise of the powers conferred by this Act for the purpose of or in connection with the trial or punishment of any personis protected equally with the court. Does the Solicitor-General say that that is the same principle under our law?
§ Mr. Silverman
I suggest, with all respect, that it is not so at all. I submit that it is perfectly possible to sue a policeman or a gaoler for wrongful imprisonment if he had no power, whatever may be his good faith. Surely there can be no possible dispute about that. If a policeman exercises a power of arrest that he does not possess, there is nothing in the law of our country to prevent an action for wrongful imprisonment being brought against him, and good faith is no answer in those circumstances. If a gaoler detains a man without lawful authority in a gaol, there is nothing to prevent an action for damages being brought against him, and good faith again is no answer. 1493 But under this Clause all these people are completely and entirely protected, and it is on that ground that I think the Solicitor-General's argument is wrong. None of these maritime courts is to have power over a British subject. If a man claims that he is a British subject his case must immediately go to a local tribunal, and that question must be determined by that local tribunal, and the Bill provides that on arrest a man must be given notice of his right— [Interruption]. I know that the Committee is extremely anxious, as I am, to hear the Prime Minister's statement, but I hope they will nevertheless permit me to conclude my argument. I shall not take a moment longer than is necessary.
Suppose a British subject is arrested and is not informed of his right to have his claim to be a British subject determined by a local tribunal. Suppose he is haled before a maritime court and imprisoned, perhaps for a long time, for an act over which that court has no jurisdiction at all. Then, under this Clause, that British subject will have no right of redress against any person connected with his imprisonment in any way, and I do not believe that the House of Commons when it passed the Second Reading, intended that that position should result. I hope that between now and the next stage, the Solicitor-General will reconsider the position and see whether some modification or amendment of the Clause cannot be made to meet the points raised in the Debate this afternoon.
§ Question, "That the Clause stand part of the Bill," put, and agreed to.
§ Clauses 13 and 14 ordered to stand part of the Bill.
§ Clause 15. —(Power of Minister of Shipping to order certain ships to be treated as ships of any Power.)
§ Motion made and Question proposed., "That the Clause stand part of the Bill."
§ Mr. Shinwell
I am as anxious as other hon. Members to expedite the procedure to enable my right hon. Friend the Prime Minister to make what I have no doubt is a very important statement, but would it not be possible to move to report Progress and ask leave to sit again so that we might discuss these matters later?
§ The Chairman
I cannot see that the reason suggested has any relevance to the business of the Committee, and I cannot accept such a Motion at this stage.
§ The Chairman
Hon. Members must not rise to talk about matters which are not relevant to the business before the Committee. I am bound by Rule. If hon. Members would allow the business to proceed according to the Rules, we should get on better.
§ Mr. Gallacher
I want to draw attention to the fact that it was intended on this 1495 side to have a Division on Clause 12, and that it was decided to give way in order that we might have the statement which everybody presumed was to be made, and then go on with the discussion on the Bill. Can nothing be done so that we can get that statement and then proceed with the Bill?
§ The Chairman
As I have said, if hon. Members would allow the business of the Committee to be conducted according to the Rules, they could get the statement very quickly.
§ The Parliamentary Secretary to the Ministry of Transport (Colonel Llewellin)
I beg to move, in page 10, line 18, to leave out "Shipping," and to insert "War Transport."
The title of the Ministry has been changed, and the Amendment is therefore necessary.
§ Amendment agreed to.
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 16 ordered to stand part of the Bill.
§ Clause 17. — (Interpretation.)
§ Amendments made:
§ In page 11, line 42, leave out "Seafaring person," and insert" Seaman of that Power."
§ In line 42, after "means," insert "in relation to any Power."
§ In page 12, line I, leave out "ship," and insert "ships of that Power." — [Mr. Peake.]
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 18 — (Application to Scotland.)
§ The Lord Advocate (Mr. T. M. Cooper)
I beg to move, in page 12, line 27, to leave out paragraph (a), and to insert:
- "(a) for the reference in paragraph 4 of the Schedule to the Lord Chancellor there shall be substituted a reference to the Secretary of State and for any reference elsewhere in this Act to the Lord Chancellor there shall be substituted a reference to the Lord Justice General;
- (b) for references to the High Court there shall be substituted references to the High Court of Justiciary."
§ This is a drafting Amendment.
§ Amendment agreed to.
§ Clause, as amended, ordered to stand part of the Bill.1496
§ Clauses 19 and 20 ordered to stand part of the Bill.
§ Schedule agreed to
§ The Chairman
The new Clause on the Order Paper ("Provision as to wages and conditions of employment ") is not in Order.
§ Mr. Shinwell
I know it is very difficult to ascertain from the Chair why an Amendment or a new Clause is out of Order, but all I wanted to do in proposing the new Clause was to secure from the Government an assurance, and may I not put my point?
§ The Chairman
I am afraid that the hon. Member cannot do it now, but he can do it on the Third Reading. The new Clause is definitely out of Order as being outside the scope of the Bill.
§ Bill reported, with Amendments.