§ Sir Irving Albery (Gravesend)
I beg to move, at the end of the Question, to add:But regret that, in view of the grave concern now felt in this House at the abolition of any judicial safeguard for the liberty of the subject against arbitrary acts of the Executive and, in view of the recent dissenting judgment given in another place by Lord Atkin, no reference is made in the Gracious Speech to any intention to submit to Parliament some modification of the Defence Regulations which, whilst still permitting the Executive to arrest and detain on suspicion, would provide that beyond a definite period the continued detention of any person shall be subject to a right of appeal to an independent tribunal.It must be admitted that this Amendment, standing in the names of several hon. Members, is, in form and substance, rather an unusual Amendment to the Address; but my hon. Friends and I and a great number of persons outside this House regard the matter as being of such importance that we feel it our duty to take every opportunity of bringing it to the notice of the Government. There will be agreement on all sides on, at any rate, one point. Regulation 18B and the power which it confers on the Government of the day are un-British and contrary to all our most cherished traditions. They are disliked by everybody who knows of them. Up to a short time ago, comparatively few people knew the real implications of Regulation 18B. There has been more publicity for it lately, and its implications are becoming more generally known. It is disliked by every Member of this House of Commons, and it has been 777 described by Ministers as a hateful procedure, which they regret having to use. I suggest that so far there is general agreement. This House of Commons has to admit to a share in the responsibility. The Regulation was authorised by this House, and I propose later to make some reference to the Debate which occurred at the time.
I would like to draw the attention of the right hon. Gentleman the Prime Minister to one aspect of this matter. I quite understand his absence to-day. He has, no doubt, many serious responsibilities which demand his attention at the present moment. But he has on more than one occasion in this House expressed his unwillingness to forgo powers which this House has given. On that point I should like to say that this House has given to the Prime Minister, or to the Government—over which he presides— and, no doubt, will do so again, because of the admiration which it has for his courage and his personal leadership, and because he is believed to cherish the traditions of this House—exceptional powers when such powers were felt to be in the interests of the State. But it seems to me that when this House has done that, it has not only the right but the duty, if occasion arises, to reconsider at a later date those powers, given in an emergency without great consideration, and it seems to me that the Prime Minister should be most willing to give the House every facility to reconsider such measures, and should be prepared, so far as possible, to meet the views of the House. I must admit that the Government have given every facility for debating this matter. No hindrance whatever has been put in our way.
I want once more to say to the Home Secretary that, in raising this matter, we do not seek to make it in any way a personal issue. If the Lord President of the Council were still Home Secretary, we should take exactly the same action. I was told that the Home Secretary made a speech at Oldham the other day, and he was reported to me as having conveyed the impression that if he did not retain every power which he has at present under Regulation I8B somebody else had better take over his job. I was fortunate enough to obtain a Press copy of that speech, and that was not the impression that I gained from what he said. My 778 impression was that he said—I am not quoting his exact words—that if he were deprived of sufficient powers to safeguard the State, somebody else would have to take over the position. This Amendment is most moderately framed, and I submit that there is nothing in it that would deprive the Home Secretary of the powers necessary to safeguard the State.
If the House will bear with me, I want to go back to the time when this Regulation was passed, and to the Debate which took place on the Adjournment in October, 1939, when the first sign occurred of some disquiet in Parliament. We owe a great debt to the Members who then raised the matter, for their diligence. I regret to say that I was not among them. Many of us were preoccupied at that time, and afterwards, when the Debate had taken place and some kind of agreement had been reached with the Government, most of us dismissed the matter from our minds as having been satisfactorily settled. I am going to draw attention to two other matters which bear that out. On 7th December, 1939, the case of a Mr. Thomas was raised at Question Time, and the hon. Member for East Wolverhampton (Mr. Mander) intervened with this Supplementary Question:Will the right hon. Gentleman give an assurance that the fact that this man is a Fascist and is opposed to the war will not in any way prevent him from obtaining complete justice?The Lord President of the Council, then Home Secretary, replied as follows:This man will be treated in exactly the same way as anybody else"—and now comes the part to which I wish especially to draw attention——and I suggest that the safeguard—and an adequate safeguard—consists in the fact that the Advisory Committee is independent of the executive Government."—[OFFICIAL REPORT, 7th December, 1939; col. 806, Vol. 355.]I propose to refer to that again shortly. I find it a little difficult to understand exactly what was meant by the Lord President when he stated that this committee, appointed by the Home Secretary, with a chairman appointed by the Home Secretary, over-ruled when necessary by the Home Secretary and presumably instructed by the Home Secretary—I imagine it must have been instructed in some way as to the line which it was to take—was independent. No doubt the Home. Secretary will explain all that later 779 on, and it is certainly a matter which needs explaining. I am rather at a loss to understand exactly how this Advisory Committee does in fact proceed. Has it to decide whether or not the Home Secretary has sufficient grounds for suspicion to justify the detention of the person, or, taking that for granted, has it to decide whether the person detained is really a person likely to be a danger to the State if released? It would, I think, be desirable that during the course of this Debate we should have explained to us in greater detail—in fact, we have never had any detailed explanation—exactly what are the purposes and the duties of this so-called independent committee.
The next point is a Question which arose on 8th October, 1940. The hon. Member for Ipswich (Mr. Stokes) asked in how many cases of detentions under Regulation 18B had the Home Secretary taken action contrary to the advice of the Advisory Committee. This was about a year after the Regulation had been laid. The Answer to that Question was: "None." The point which I make is this, and it seems to be evident, if one takes into account the facts which I have just related. There is no doubt whatever in my mind that, as a result of the Adjournment Debate in October, 1939, His Majesty's Government, including the Lord President of the Council, the hon. Members who attended the conference and the House of Commons generally, believed that an arrangement had been come to which would offer adequate safeguards, and that there was nothing more to be anxious about except the question of principle, and the question of principle might perhaps be overlooked during wartime, if, at any rate in practice, the temporary arrangement was functioning without giving cause for anxiety.
What happened after this? The matter became quiescent. There did not seem to be much complaint. I myself was quiescent about it at that period. Gradually, however, anxiety began to increase and attention was once more drawn to the subject, and the reason for this undoubtedly was the fact that later, in quite a considerable number of cases, the Home Secretary took action contrary to the advice given him by the Advisory Committee. As a matter of fact he took different action in about 10 per cent. of the cases. I do not know the exact 780 number. I cannot remember the precise figure, but I believe it was somewhere between 135 and 150 and I think rather nearer 150. Subsequently the Home Secretary reconsidered his action, a certain number of the people concerned were released, and, in that way, the number of those detained contrary to the advice of the Advisory Committee has been reduced, I believe, to something just over 100. The Home Secretary sets great store by his personal reponsibility. I wonder whether, if he has a moment to spare, he would make this calculation. If he had to give only 15 minutes of his own personal time and attention to each one of the cases of persons detained under Regulation I8B, to how much would it amount? He will find that it adds up to a good many man-hours, and it certainly amazes me if the right hon. Gentleman, among his many other preoccupations, is able to give all that time to these individual cases.
I am afraid, however, that the question which worries me is this: Has the Home Secretary got some other adviser besides the Advisory Committee? Is the Advisory Committee nothing but a polite blind? Is the adviser upon whom the Home Secretary mainly relies, in fact, the Security Department? Does he get his advice on the continued detention of persons whose release is recommended by the Advisory Committee from the body which originally advised those detentions? If that be the case, I would ask the right hon. Gentleman to consider this. We have no trained Gestapo in this country. This is a most important point. I do not like to use the word "Gestapo," and I am not suggesting for one moment and do not wish to suggest that the Security Department of this country acts in the way in which the Gestapo acts in Germany. But I would suggest that the Gestapo in Germany is efficient. The members of that organisation know what they want to do. They just want to lock up or otherwise ill-treat anybody who opposes the present government in Germany or the Nazi system. That is all they have to do, and they arc very expert at finding out who does and who does not oppose the Government. I do not think they make many mistakes in that respect. But here we have not got a Security Department which is skilfully trained in finding out what people's 781 beliefs are in this free country. We have not that kind of trained Security Department. It has been mentioned to me that some of the right hon. Gentleman's senior police officials are not a little concerned about this matter. They also are under the impression that we have not got the kind of security force here which is specially qualified for that kind of work and which we have always been able to do without, up to the present.
I pass to another point. I do not wish to go into details, but I want the House fully to realise the position and I may say that I have gone into a lot of these cases. I have spent much more than 15 minutes on each of them, and I have been able to see only one side of them. This brings me back again to the question of the Home Secretary's responsibility. He says that he is responsible to this House. But when he makes a mistake this House has to find out that he has made a mistake. We see only one side of the picture. We see the statement that a man has been detained, and if we are to rely on the statement of the party concerned that the Home Secretary has made a mistake in his particular case, then it would appear that the Home Secretary has made mistakes in nearly every case. I do not know what remedy we have unless, day by day, on the Adjournment we raise case after case until we finally come to one in which the Home Secretary has to admit that he has made a mistake. I should not wish to be too hard on the right hon. Gentleman if he did so, but I have never been able to understand why he should cling to this most unenviable personal responsibility, under which, as is the case with so many Secretaries of State in other respects, a duty is handed on to someone who has more time to give it full attention. But the Minister nevertheless takes responsibility for the actions of that person. Obviously, it must be possible in this particular case to appoint a committee, with a chairman, whom we can trust provided they know what they have to do. At the present moment it is not clear.
The examples I want to mention are these, and they are the kind of cases which have been brought to my attention. There is the question of the person who is arrested on account of association. The powers of Regulation 18B, as hon. Members know, are tremendously wide. They have to be. I do not quarrel with 782 that, provided there are adequate safeguards. Some people are detained on account of their associations. A father came to me the other day. He made a most favourable impression as a typical, honest, decent British man. He is brokenhearted because his daughter, a young woman, is detained under Regulation I8B. The reason was that she had had, it cannot be denied, very undesirable associations. She had associated with two persons who had been dealt with and who were definitely undesirable associations. But the father and the mother, who profess to know their daughter, are ready to vouch for her loyalty to this country at all times, in the past, in the present and in the future, and claim that, although their daughter had associations with these persons, she had no part whatever in their activities and was not even aware of them. That is one case, and there are others like it of people who are attracting attention because they have, unfortunately, associated with undesirable persons.
There is another case which seems to me to be worse. I drew the attention of the right hon. Gentleman to it the other day, and I must say how impressed I was by the prompt and courteous manner with which he went into the matter and wrote me a reply. Nevertheless, it is a case of the kind to which I want to draw attention. It is the case of a man of 67 and his wife, aged 63, both connected with the Fascist Union. The man had been very ill in prison. He had to be let out on account of his ill-health. He is supposed to be dying, and his wife of 63 asked, on compassionate grounds, to be let out to go to her dying husband. The right hon. Gentleman let her out for a short time. I do not know what he has done since. At any rate, he let her out for a short time, and she was ordered back to prison, and then she wrote an appeal to me. It was a heart-breaking letter. She said, "When you get this I shall be back in Holloway Prison."
The whole meaning of this Regulation, as I understand it, is that it is preventive. I do not know the reasons for detaining these persons. They may have been quite adequate under the Regulation, but I ask this House to consider whether we are really asked to believe that a woman of 63, with a sick and dying husband of 67, who wants to go and make what arrangements can be made—I believe financial questions enter into it too—would be dan- 783 gerous to the State if she were let out. It necessary, even some observation could be kept on the case. I have only one more example, and it is this: A great many of the men who were detained under Regulation I8B served this country loyally and faithfully in the last war, and many of them are decorated. Is anybody, any of those who, I believe, are primarily connected with this Regulation, the Attorney-General, the Lord President of the Council or the right hon. Gentleman the Home Secretary, justified, without the most definite evidence, in suspecting men who served this country in the last war and have been decorated for their valour in the field, and wounded too, merely because they happen to have had some association with principles which perhaps are not approved?
Before I finish, I suppose I ought to say a word or two on the question of remedies. I do not think that it is usually very useful if a Private Member suggests remedies to the Government. It generally only gives them an opportunity of pushing something down, and usually they have at their disposal better means of providing, or at any rate constructing, remedies than the average Private Member, but I suggest that there are two which would go a long way to easing the present anxiety. The first would be to take note of what the Liversedge judgment definitely shows coupled with the observations which I made at the beginning of my speech, that this House thinks that this Regulation does not give at the present moment the safeguards which this House, and, I am inclined to believe, also the Lord President of the Council, believed it had after the conference with the other Members. The Lord President of the Council shakes his head. Then I still maintain that the majority of the Members of this House believe that after that conference a safeguard had been obtained, and if it was not obtained, perhaps we may be informed later on what the safeguard was. In any case I suggest that a safeguard should now be given.
The other alternative would mean very little interference with the present procedure and has a good deal to recommend it. Leave the Home Secretary with all his present responsibilities, and the Advisory Committee with its present functions, provided the explanations which we shall no doubt receive are adequate, and 784 after that, where the Home Secretary wishes to take action contrary to the advice of the Advisory Committee, the fact should be reported either by him or his representatives to a Select Committee of this House. He would retain his responsibility. I have no doubt that in most cases that Select Committee would then approve of his action, but if at any time they did not, they would report to this House, and this House could then take such action as it might think fit. That suggestion has another advantage to recommend it. It would deal more adequately with the cases where Members of this House of Commons could be detained under Regulation 18B, and in passing I would ask the Home Secretary whether it is a fact that he was powers to depute his authority to arrest Members of this House to Regional Commissioners? I should like an answer to that. I am under the impression that he has that power.
I am not a lawyer, and I may not have presented the case anything like so well as a learned Member of that profession might have been able to do. I trust that during this Debate we shall have a contribution, or contributions, from Members of that learned profession. In conclusion, I only want to say that there are many things which this Government ought to do to help win the war which would interfere with a large number of persons, but the Government have not the courage to do them. In the present case what they are doing interferes with a comparatively small number of persons, and to my mind the quintessence of tyranny is to do to a small number of persons what you would never dare to do to a large number of persons.
§ Commander Sir Archibald Southby (Epsom)
I beg to second the Amendment which has been so ably proposed by my hon. Friend the Member for Graves-end (Sir I. Albery), who sits beside me.
I am sorry that this matter has had to be raised as an Amendment to the Address in reply to the Gracious Speech. It is true that as the Prime Minister said the Debate on the Address furnishes for the House of Commons as a whole an opportunity to review the work of the Government and to make such criticisms as appear proper and necessary, but a Division during a Debate on the Address 785 does undoubtedly imply censure of the Government and, therefore—certainly at a time such as this—a Division should not be taken lightly or without considering the possible effect such action would have, not only in this country, but outside this country, where appreciation of the real circumstances under which it took place might not be so clear as they are in this House. For my part—and I think my view is held by others—I believe sincerely that Regulation I8B, as originally drafted and then passed by this House, was a measure passed at a time of great national stress and uncertainty without, perhaps, that consideration of all its implication which so grave an infringement of the civil liberties of the subject should have merited. That being so, I hold the view that, profiting by our experience during the last two years of the working of the Regulation, the time has now come to make some reasonable amendment.
I want if I can to persuade the Government of the correctness of the view that I hold and to co-operate with them in finding a means whereby the ancient liberties of the subject may to a certain extent be restored while at the same time the Home Secretary and the Executive remain in possession of the powers— drastic powers they must be—which it is essential that they should possess in order to preserve the security of the community at a time of great national danger. For this reason I welcomed the announcement which was made by the Prime Minister recently that time would be found for the discussion of Regulation I8B. I took that to mean that discussion would take place on another occasion, not on the Debate on the Address, but on a separate occasion. I am convinced that this would have been a much better arrangement and a more advisable course to have adopted, since it would have enabled Members to register a vote on the specific question of the amendment or otherwise of Regulation 18B without thereby seeming to register general censure of the Government, who, I think, merit great praise for much that they have done in the prosecution of the war. They have made mistakes, but in the main I think they have done reasonably well.
I do think, however, that so far as the application of Regulation I8B is concerned, Parliament did in the first instance make a mistake, that this mistake has been needlessly perpetuated by the 786 Government, and that if the Government now maintain an attitude of blunt refusal to entertain any reasonable amelioration of the provisions of 18B, they will be making a serious mistake, the effects of which may well be far reaching. Speaking in Glasgow in 1908, a famous statesman, Lord Rosebery, said:I distrust a despotism even when exercised in the name of liberty and adorned by the epithet 'benevolent' for I know the benevolence to be accidental and the hypocrisy permanent.With that I certainly agree. Even the most ardent supporters of the Government could hardly say that Regulation I8B was benevolent. I detect a tendency just now on the part of members of the Government, and indeed, in the Government-controlled organs of the Press, to censure Members who feel as I do, and others with me, because we deem it to be our duty to do what we can to obtain some alteration of this Regulation. Surely it is unfair to blame us for what we conceive to be our public duty. So short a time ago as 30th September last the Prime Minister said:There is only one duty, only one safe course, and that is to try to be right and not to fear to do or to say what you believe to be right. That is the only way to deserve and to win the confidence of our great people in these days of trouble."—[OFFICIAL REPORT, 30th September, 1941; col. 517, Vol. 374.]Neither the Prime Minister nor anybody else can say that he is unaware of the growing feeling which exists in this House and outside in the country on the subject of Regulation I8B. For that reason I regret that this Debate should not have taken place on an occasion when there could have been a separate vote, if necessary. At the same time I join with my hon. Friend the Member for Gravesend in thanking the Government for allowing us to have this opportunity for discussion. The House will recollect that Regulation I8B was introduced by the then Government on 31st October, 1939, and that the then Home Secretary said:It would be quite wrong to suppose that in general the regulations now before the House are more drastic or sweeping in character than those which were in force during the last war, though there are certain regulations and pro-visions of a novel character which the House will expect me to endeavour to justify."— [OFFICIAL REPORT, 31st October, 1939; col. 1853. Vol. 352.]Speaking in the same Debate, the present Secretary of State for Air pointed out that this view was incorrect and suggested that 787 the Regulations did go further than anything which obtained in the last war. In view of some opinions which have been expressed recently in the Press, since it became apparent that to-day's Debate would take place, it is worth while recalling what was said in the original Debate in October, 1939. I ask the House to cast their minds back, because I want to prove that there has always been apprehension in the country about the application of Regulation 18B. In that Debate the hon. Member for Bridgeton (Mr. Maxton) quoted from a leading article in the "Glasgow Herald" which contained these words. He stressed them in his own inimitable style, and the words were these:…Liberty is no less cherished in war than in peace…. Some threats to freedom seem now to be coming from a good way nearer home than Berlin and the people will look to their representatives in Parliament to put up a most resolute defence."—[OFFICIAL REPORT, 31st October, 1939; col. 1877, Vol. 352.]The hon. Member also quoted from the "Sunday Mail," from an article entitled "Your Danger." I commend it to those who now seek to defend Regulation I8B and many of the burdensome Regulations from which the community as a whole is suffering. The writer of the article said:… 'Do not let us forget that even in our own seats of authority we have big pots and little pots imbued with the spirit of the Gestapo, if they could get away with it.' "— [OFFICIAL REPORT, 31st October, 1939; col. 1878, Vol. 352.]Here is evidence of the apprehension felt throughout the country concerning the Regulation as originally introduced, and those apprehensions ran all through the Debate. Indeed it became apparent that unless the Government were prepared to make some concessions, the House would refuse to pass the original Regulations. On looking up the speech which I made on that occasion, I find that I asked for reconsideration of the Regulations so that safeguards could be inserted to meet criticism, while not surrendering one jot or tittle of the proper powers which it was essential for the Government to have. The result of that Debate was that the Home Secretary agreed to call a small informal conference of some of those Members who had taken part in the Debate and criticised the Regulations as originally proposed. The undertaking given by the then Lord Privy Seal was of course that, with the 788 assistance of the conference, the then Home Secretary would propose revised Regulations which would, as far as possible, meet the wishes expressed by the House of Commons during the Debate.
The first meeting of the conference, at which I had the honour to be present, was called for 8th November, 1939. I would like to pay my tribute to the then Home Secretary, now the Lord President of the Council, for his courtesy, patience, and fair-mindedness. At the conference, the main objection to the Regulations as they stood was concerned with the completely arbitrary and autocratic powers which Regulation I8B conferred upon the Home Secretary. Under Regulation 18B, the Home Secretary had only to "be satisfied"; if then he acted, his action in detaining a citizen became perfectly legal and could not be challenged. Consequently, as a result of the Debate and of what took place at the conference, the Government agreed to alter the words so that they should read, "has reasonable cause to believe." I can speak only for myself, but I believe that my understanding of what was proposed was shared by other members of the conference, whether laymen or members of the legal profession. I understood the words "has reasonable cause to believe," which frequently appear in Acts of Parliament, to have this effect, namely, that if the subject considers himself aggrieved by the action taken by a Minister of the Crown under the provision of an Act, he has the right to go to the High Court and challenge the Minister's action, and it is then incumbent upon the Minister to prove to the court that he has in deed and. in fact acted reasonably. The obligation rests upon the Minister and not upon the aggrieved citizen.
§ Earl Winterton (Horsham and Worthing)
I think it is only right that, as a Member who was present at the conference, I should interrupt my hon. and gallant Friend to say that I think he will recollect that there was no question of the High Court or of any court raised actually at the conference. I think it is only fair to say that.
§ Sir A. Southby
I have tried to make it clear that I am speaking for myself only. What I am trying to explain to the House is what I understood to be the effect of the alteration in the wording. I considered that, as a result of the altered 789 words, the desire which had been forcibly expressed by hon. Members in the Debate for some measure of safeguard for the ancient rights and liberties of the citizen, while at the same "time conferring upon the Home Secretary those wide powers which it is so essential for him to possess, had in fact been achieved. For various reasons the original Regulations had to be passed, but the House only agreed to their passage on the definite understanding that amended Regulations would be tabled which would be open to criticism in the House. For the reasons which I have just given, the amended Regulations, as introduced, met with the approval of the unofficial conference, and I imagine that the House was prepared to abide by the view of that conference. I venture to suggest that it is was only because of the alteration which was introduced as a result of the work of the conference and the speeches made in the original Debate that the House agreed to the amended Regulations, the introduction of which had been promised by the Lord President of the Council. Therefore, I contend that the view set forth by Lord Atkin in his dissenting judgment in the case of Liversedge v. the Home Secretary and Another does express the view that was held, not only by members of the informal conference, but by the House as a whole. In short, the House desired some safeguard for the citizen and some curb upon the Home Secretary, and made it clear that without that safeguard and that curb, it was not prepared to pass the original Regulation. The Government offered an alteration in the wording which the House was led to believe would meet its wishes. It is now argued that this was not so.
§ Sir A. Southby
I have not said that we did. I am trying to express what I, as a member of the conference and as one who took part in the Debate, believe was the view of myself and many other hon. Members. It is now argued that the altered words mean no more than the original words. If that is so, why were the words altered? Whatever may have been the view of the Attorney-General, I have no doubt that the then Home 790 Secretary—I say this as being my personal view—intended the words to mean exactly what Lord Atkin in his judgment says he believes they mean.
§ The Lord President of the Council (Sir John Anderson)
I must make it quite clear that nothing of that sort was ever present in my mind. If a request had been pressed during the informal discussions that the reference to the Advisory Committee should be replaced by a clear provision entitling persons detained under the Regulations to bring their case to the courts for a review on merits, I should have been bound to make it quite clear that that, in my view, was inconsistent with the requirements of the situation and the executive powers given to the Home Secretary. As a matter of fact, the informal discussions proceeded on the basis of trying to find additional safeguards within the four corners of the procedure contemplated in the Regulations, namely, reference to an Advisory Committee. I think what I have said will be in accordance with the recollection of others who took part in the discussions.
§ Mr. Stephen (Glasgow, Camlachie)
Will the right hon. Gentleman say what he considered to be the effect of the alteration that was made?
§ Sir A. Southby
I have only been stating my personal view. It is true, as my right hon. Friend says, that there was no question of an appeal, but the point I am trying to make is that I believed— and I think my view was shared by others —that the alteration in the wording of the Regulation meant that the aggrieved citizen would be in a position where the Home Secretary would have to show to somebody that he had acted reasonably. I cannot answer for what the Attorney-General's view was regarding the altered words, but he certainly never told either the conference or the House what he has now stated in court, namely, that the Regulation as amended means and was intended to mean, precisely the same as the Regulation which was withdrawn as a result of the views expressed by the House.
§ Sir A. Southby
The decision of the House of Lords in the Liversedge case supports the view which the Attorney-General holds, and presumably held about Regulation 18B when the Regulation was 791 discussed and its wording altered. Naturally, I have discussed Regulation I8B with all sorts of different people in all sorts of different places. I expect many other Members have done the same. I have never yet met anyone who has not expressed astonishment and perturbation when its implications were explained. So far as I am concerned, I cannot too strongly emphasise the fact that I appreciate that some such Regulation is necessary, and that it would be wrong and dangerous for anyone to advocate its repeal at the present time. I consider, however, that in order to safeguard the reasonable liberties of the citizen it should be amended. The recent decision of the House of Lords makes it clear that a citizen arrested and detained without being charged, without trial and without appeal, has no legal protection whatsoever. It is said by the Government, firstly, that the detained person can appear before the Advisory Committee. The Committee is supposed to have been told the reasons for the arrest and the accusations against the prisoner, but no one has any means of knowing what facts or whether all the facts have been put before the Advisory Committee by the Home Secretary. The prisoner himself is not told what the accusations against him are.
§ Mr. Stokes (Ipswich) rose—
§ Sir A. Southby
Perhaps I may be allowed to finish. The prisoner is therefore in the dark. He has to answer questions put by a body which is informed of allegations and circumstances which have led to his arrest but which have been withheld from him; he has no trained legal adviser to assist him. I suggest that that is a travesty of justice. If, after considering his case, the Advisory Committee come to the conclusion that he ought to be released and that he has been wrongfully detained, then the Home Secretary is under no obligation to take the advice of the body which has been specially set up to advise him in this case. In fact, as my hon. Friend the Member for Gravesend has stated, in numerous cases the Home Secretary has refused to take the advice of the Committee. In my opinion, the only reason for the Home Secretary's refusal to take the advice of his own Committee must be that he has not disclosed to the Committee all the facts, allegations and suspicions which are in his possession.
792 Secondly, it is said that a check upon the actions of the Home Secretary lies in the fact that he can be called in question by this House for anything he does. But what protection does that afford the individual? Suppose a man is detained. He goes before the Advisory Committee, who recommend his release. The Home Secretary decides that he shall be kept in prison. Suppose that the man then appeals to his Member of Parliament for help. His Member may or may not know him personally, but he can see him and try to find out as much as possible about his case. After due consideration of the circumstances as far as he knows them, he may come to the conclusion that his constituent is the victim of an injustice. How can that Member criticise the Home Secretary? He may raise the matter on the Floor of the House, but the Home Secretary can refuse, and indeed might be right in refusing, to give any information about the case or state the reasons for detaining the man. The Home Secretary can refuse to disclose anything upon which he could, in fact, be criticised. He would say that the House must rely upon his impartiality and discretion; in other words, the House of Commons must accept his unsupported word that no grounds for criticism exist.
We all want to see traitors punished, and we all desire that evil-doers and would-be evil-doers should be restrained, but the terrible thing about the imprisonment of an individual without a charge being made, without trial and without the right of appeal, is that, whether he be guilty or innocent, the stigma of having been imprisoned as a potential traitor to his country at a time of his country's serious danger will attach to that individual for all time, and will attach to his children and his children's children. For that reason, therefore, an individual should be given some opportunity to prove his innocence. The only hope that a detained person now has of clearing his good name lies in the fact that a Member of Parliament can still stand up in his place in this House and make whatever defence is possible from the facts as he knows them. But let the House and those outside the House remember that, owing to their control of the wireless and of the Press, the Government can prevent one single word which is said in this House in a man's defence from being brought to the attention of people out- 793 side. In fact, the general public may be kept in ignorance of the 'fact that a Member has stood up and defended an individual. It might be said that at any rate the defence made would stand in the official records of this House. But it is possible for the Government to spy strangers, in which case no record would exist in the OFFICIAL REPORT of one word which was said in protest of a man's arrest under Regulation 18B. Indeed, as things stand at present—I do not say it is probable; but no man can look into the future—it is possible for the Government to arrest on a trumped-up charge a Member of Parliament whose criticising of the Government or the Home Secretary in respect of any action taken was inconvenient to the Government. His voice is thereby silenced in this House, which should surely be the inviolable temple of free speech. Let me remind the Home Secretary of something he said in the Debate in 1939—it is true that at that time he was a staunch supporter of the liberties of the subject on the other side of the House.
§ Sir A. Southby
The present Home Secretary stated on that occasion:I am not going to use; the argument usually put forward as a matter of courtesy that we do not believe the present Minister would be wicked but that we are afraid his successor might be. I think that any Minister is capable of being wicked when he has a body of regulations like these to administer."—[OFFICIAL REPORT, 31st October, 1939; col. 1846, Vol. 352.]I am perfectly prepared to admit that in present circumstances it is difficult, though not impossible, to achieve some sort of amendment to this Regulation. The guarantee that under no circumstances could a Member of this House be arrested without his fellow Members being told why, and he himself given an opportunity to make his defence in this House to the charges against him, would offer a measure of security to the public as a whole. I make no claim that any Member of this House should be treated, if he does wrong, differently from any other citizen. I claim, however, that membership of this House entails duties as well as privileges, and that in the exercise of his Parliamentary functions a Member should have a measure of protection denied to those whom he represents. Let me remind the House that if one of us—and this in- 794 cludes not only the Minister but also Mr. Speaker—does anything wrong, he must suffer for it, but it is fundamentally wrong, and contrary to every Parliamentary liberty for which men and women have died in the past, that a Member's voice should be silenced without his fellow Members being told why. The Prime Minister on 27th February, 1941, stated this:It is the policy of this present Government to raise and sustain the personal status of Members of Parliament in every possible manner."—[OFFICIAL REPORT, 27th February, 1941; col. 734, Vol. 369.]I suggest that here is an opportunity for him to fulfil the promise contained in those words. I can assure the Prime Minister that it is not easy to offer criticism. I hope he will forgive my saying so, but he does not make it any easier since, rightly or wrongly, he gives the impression that he considers those who criticise either defeatist and obstructionist or personally antagonistic to himself. I beg him to believe that so far as I am concerned this is certainly not the case. In this, as indeed in any other matters where I am convinced that I should voice the views which I honestly hold, I am actuated by no personal motive of any kind or sort. It is so much easier to say "Yes, Mr. Churchill" than "No, Mr. Churchill," but perhaps my right hon. Friend will remember who it was who wrote this:The temptation to tell a chief in a great position the things he most likes to hear is one of the commonest explanations of mistaken policy. An Emperor, a Commander-in-Chief, even a Prime Minister, in peace or in war, is in the main surrounded by smiling and respectful faces. Most people who come in contact with him in times of strain feel honoured by contact with so much power, or in sympathy with the bearer of such heavy bunions. They are often prompted to use smooth processes, to mention some favourable item, to leave unsaid some ugly misgiving or some awkward contradiction. Thus the outlook of the leader on whose decision fateful events depend is usually far more sanguine than the precise facts admit.If my hon. Friends want to know where that comes from, let them read "World Crisis," by Winston Churchill. I submit that a case has been made out for some alteration in the working of Regulation I8B. Undue State control of the individual, if allowed to grow unchecked, must inevitably lead to something approaching the tyranny of Nazism or Communism. If, by having raised this matter, we can have some alteration made 795 which will bring the Regulation into line with what we and the House thought it was going to be when it was altered in 1939, the Debate will not have been in vain.
§ Mr. Pethick-Lawrence (Edinburgh, East)
I think we owe a debt of gratitude to the two hon. Members for raising this question and for giving voice to opinions which are held on a considerable scale throughout the country. I felt very much interested in their moderate and human presentment of their case. The only criticism that I have to make of their speeches is that I think they have not put before the House, I am am not sure whether they have themselves envisaged, the logical consequences of the proposals that they are making. I quite understand what the hon. Member for Gravesend (Sir I. Albery) said, that it is no good putting forward proposals and alternatives for the Government to knock them down. I am not complaining that they have not enlarged at great length on the particular proposal which finds its place in their Amendment. What I am saying is that any alternative to the present scheme involves certain difficulties. Neither the proposer nor the seconder seems to have envisaged what those difficulties are or made any attempt to show how to meet them.
The Debate concerns three points. The first is, What is in fact the existing law? The second is, To what extent did the House of Commons desire the law to be as it is at present interpreted when the Regulation was originally passed? Thirdly, What does the House wish to do with regard to the law as it is declared at present? It would be impertinent for me to express any opinion with regard to the meaning of the Regulation other than what has been decided in the Liversedge case, and it is really quite unimportant for any one of us to state how far we think the Judges in that case were right or wrong. The fact is that their judgment stands. It is the law, and that is how the law will be interpreted unless the House sees fit to alter it. There is no point in discussing the actual Tightness or wrongness of the judgment actually delivered.
The second point is, Was the interpretation of the law which has been declared by the Judges the interpretation which Members of the House of Commons 796 thought they were enacting when they allowed this legislation to be passed? The hon. and gallant Gentleman the Member for Epsom (Sir A. Southby) suggests that, as far as he was concerned, it certainly was not the interpretation that he placed upon it, but I would put it to him that on so very important a matter as this surely it was his business to get perfectly clear what the amended Regulation really meant. I think he recognised perfectly well that in its original form the Regulation did not give a detained person the right to go to a court of law and ask that the decision of the Home Secretary should be set aside. If then, when the Home Secretary agreed to the amendment of the Regulation in certain words, if the members of the conference—I was not a member of the conference that waited on the Home Secretary—were desirous of getting the position clear beyond a peradventure, surely they should have said to the Home Secretary, "We want to be perfectly clear. Does this alteration give to a detained person the right to go to the court, because unless it does so we are not satisfied?" The hon. and gallant Gentleman does not suggest that that question was ever put.
§ Sir A. Southby
As a result of the conference I was perfectly clear in my mind that what I, and I believe others, wanted to put into the Regulation had in fact gone in. Secondly, there was no question of a detained person having the right to appeal against his detention other than the right, which I understand exists in other cases, to challenge the Minister's reasonableness in a court of law. That is what I believed the altered words meant. There is no question of appealing against the Home Secretary in regard to 18B but only on the point whether the Home Secretary has acted reasonably.
§ Mr. Pethick-Lawrence
I thank the hon. and gallant Gentleman for his intervention, but I do not think that I interpreted him wrongly. He thought that the alteration of the words gave the detained person some right to go to the court to question the Home Secretary's decision. He did not get that point cleared up, and if that was the point he thought was important it was rather lax in him not to have had the point finally cleared up. The fact was that he and his friends thought that was the interpretation of the 797 law, but His Majesty's Judges have since declared that it is not the law.
§ Mr. Pethick-Lawrence
Judgments given in the House of Lords are given, if necessary, on a majority decision, and this was the decision of the majority. It is not for us to decide whether it is right or wrong. It stands and is the law. I do not want to waste time on this point further, except to say that it is clear, even after what the hon. and gallant Member for Epsom has said, that neither did the Home Secretary give any pledge nor was anything said openly and affirmatively in the House which would justify the interpretation which the hon. and gallant Member says he genuinely believed to be that of the altered Regulation.
§ Mr. Silverman (Nelson and Colne)
Will my right hon. Friend say whether he agrees that the original Regulation was taken back because the House thought it gave too great power to the Home secretary and that the alteration ultimately agreed upon was to reduce that power? It the House of Lords has decided that the change did not reduce the power, is not some change important?
§ Mr. Pethick-Lawrence
I really think that that is rather irrelevant. The important question to consider to-day is what we want to do about it, and the other point is rather subsidiary. No one pretends that there has been no alteration. What the House of Lords has decided is that such alteration as there has been owing to the change of words does not carry with it the right of the Judges to override the decision of the Home Secretary. There has been a change of words. I will not go into what the precise result of that change is, but no doubt it affects the Home Secretary's decision when he makes up his mind on the cases.
I want to come to what is the real issue we have to decide to-day, which is whether, in view of the recent decision in the Liversedge case, the House of Commons wishes to make some alteration in the existing procedure. We have, first of alt, to get clear in our minds where we all stand, and for that purpose let us see what is not in dispute. It is not in dispute that in ordinary peace-time such a Regulation as 18B would be absolutely 798 abhorrent to every Member of the House. It is a denial of the liberties for which this House has always stood and on which the people of this country justly pride themselves. It is hardly in dispute that some power of detention of persons who are not charged with the commission of a definite act should be part of the law of the land during war. I believe that there is practically no dispute in the House and very little in the country that some power of detention of suspected persons, as distinct from persons who have committed criminal acts, is necessary in time of war.
§ Sir I. Albery
If the right hon. Gentleman will look at the Amendment, he will see that that is included in it.
§ Mr. Pethick-Lawrence
That is what I am suggesting. I say that there is a general consensus of opinion, including the two hon. Members who moved and seconded the Amendment, in the House and the country that there must be the power of detention of a person who has not committed a definite criminal act but with regard to whom there is suspicion that he may be injurious to the country.
If that is admitted—and there seems to be no dispute about it—the only remaining question is on whom lies the ultimate responsibility for detaining that person. The hon. Member for Gravesend shakes his head, but he admits that a person must in certain circumstances be detained on suspicion, and the only other question is who should have the power to order that detention. The hon. Member for Gravesend a little while back wanted to give the detained person the best of both worlds. He wanted the Home Secretary to be able to detain a person for a time and then allow the person to go before some tribunal. If the tribunal let him out, the Home Secretary was bound to let him out, and if the tribunal proposed to keep him in, the Home Secretary might still let him out. That is giving him the best of both worlds. In some way or another, however, either the Home Secretary or some tribunal or some other person or set of persons must have the ultimate say as to whether a detained person should go out or stay in. I cannot see any alternative to that. That is the logical question to which those who object to the present state of affairs really must address themselves. Before I consider who that ultimate authority should be, I must make one further point. Whatever 799 person or persons possess that ultimate authority they must consider the matter in secrecy. They must have all the facts and they must keep secret both the facts and the details of their investigation. Clearly these are matters in which are involved vitally important questions which it is necessary should not be divulged. We have got as far as this—there must be detention, some person or body of persons must be the ultimate authority, and those persons in considering the case must do so in secrecy.
We now come to consider who the authority should be. At present it is the Home Secretary. That power could be given to two somewhat different types of people—a purely judicial authority, in fact, a court of law; or a body that is not strictly judicial, a quasi-judicial body such as the existing tribunal. The first question I would put to those who are inclined to dislike the present position is: Is a court of law a suitable body to investigate cases of this kind and are the considerations which must weigh in coming to a decision those which a purely judicial body is most fitted to consider? I emphatically answer that question in the negative. I do not believe that a court of law, well constituted as it is to discuss questions of fact, is in the very least a suitable one to discuss questions of suspicion. When I was in India some 10 years ago there were detenus who had been put in prison on suspicion by the Government, and the Government wished members of the legal profession to go through the evidence and say whether it was evidence which entitled them to keep them in detention. The legal profession definitely refused to do so. They said that it was not part of their business, that it was entirely away from their proper duty and that they would not be parties to any procedure of that kind.
If it is seriously suggested that a court of law is the right body to decide on whether the facts are such as to justify the Home Secretary in keeping a man in detention, I must say that I entirely disagree. I do not think it would give any advantage to the detained person, and am not at all sure that it would not be considerably to his detriment, because if we remove the ultimate responsibility from the Home Secretary and give it to a court of law, that tends to make the Home Secretary much more lax in coming to his 800 original decision. He will say, "If I am deciding wrong the court of law will put me right. "And when the matter comes to the court of law they will, in effect, say that the Home Secretary has made the decision and will want very strong evidence before they upset it. I therefore believe that the position of the detained person would be worsened if we left the ultimate responsibility with a court of law instead of where it is at present, on the shoulders of the Home Secretary.
Now I come to the point about a semi-judicial tribunal, and I use those words advisedly, because neither of my hon. Friends was at all clear as to how this body was to be constituted. One of them referred to it as an independent committee. I imagine that they do not like for this purpose the particular advisory committee which the Home Secretary has set up, because it is set up by himself and cannot be described as entirely independent of the Government. They want to give the ultimate authority to some such tribunal. They want to say, "Whomsoever this tribunal releases shall be released, and whomsoever it chooses to hold shall, unless the Home Secretary has changed his mind in the meantime, be kept in confinement." I think that is a most dangerous constitutional doctrine. It is far more dangerous than the position we have at the present time. There would be a tribunal composed, possibly, of most eminent men but not responsible to the Government, not responsible to this House, not responsible to anyone. To paraphrase a statement that was made in another connection, they would have neither a body to be kicked nor a soul to be damned; and yet we are to give to this entirely irresponsible tribunal the power to decide the fate of these individuals.
I can see no great advantage in that. It is possible that they would be more, favourable to individuals than the Home Secretary. It might very well happen that they would release from detention people who subsequently were a danger to this country. What would happen to the tribunal? We should not be able to fix any responsibility upon them. They would say, "We did our best—and there it is." But if the Home Secretary releases from detention somebody who proves to be a menace to the country we shall still have him here with us and there will be consequences for him. The question must be looked at from both sides, 801 from the point of view of the liberty of the individual who, it is suggested, should be detained and also from the point of view of the security of the State. If the Home Secretary acts not merely improperly but unwisely, or even unfortunately, he will be here to bear the whole brunt of our criticism and to face his accusers.
§ Sir A. Southby
I hope the right hon. Gentleman realises that I have never suggested that the sort of tribunal which he has been describing should be set up. If he says that, he is, quite unintentionally I am sure, misleading both the House and the public outside. If there is to be any appeal from the action of the Home Secretary then let it be to this House or to one of His Majesty's Judges.
§ Mr. Pethick-Lawrence
My hon. and gallant Friend may himself have said that an appeal should lie only to this House or to one of His Majesty's Judges, but somebody, I think the hon. Member for Gravesend, definitely said in his speech to-day—
§ Sir I. Albery
I am very much disinclined to interrupt the right hon. Gentleman, but I would say that I entirely fail to recognise the picture which I put forward in the remarks which he is attributing to me.
§ Mr. Pethick-Lawrence
That is my point, that neither hon. Member appears to realise the natural consequences of their proposals. I ask them to read their own Amendment. The hon. and gallant Member for Epsom spoke about an appeal to a court of law, but there is nothing about a court of law in the last words of the Amendment, which says specificallybeyond a definite period the continued detention of any person shall be subject to a right of appeal to an independent tribunal.If they mean a court of law, why do they not say so? I took it to mean some body like the Advisory Committee but not constituted in precisely that way. If a court of law were meant then I have given my answer to that suggestion; but there are other people, even if the hon. Members do not take that view, who want a body something like the Advisory Committee, either appointed by the Government, as that is, or an independent body appointed in some other way, I do not know how, which will have the last word, and it is to those people that I am now addressing myself. Whether this body is 802 appointed by the Government or not I do not see how the liberty of the subject will be better preserved by giving to the chairman of such an independent tribunal the power of deciding whether a man shall be taken to prison in preference to giving that power to the Home Secretary. It it is suggested that the position of the subject will be improved by there being a double check, first the Home Secretary and then the tribunal, I can only repeat what I said about a court of law, that I think the double line of defence would prove to be weaker from the point of view of the individual concerned than is the present system, because neither of the two would really feel that absolute responsibility rested with them.
§ Mr. Craik Henderson (Leeds, North East)
Is not the difference this, that if there is an appeal to a court of law there is full publicity, whereas in the case of the decision of the Home Secretary there is secrecy?
§ Mr. Pethick-Lawrence
I thought I had dealt with that point earlier in my speech. I pointed out then, and no one objected to it at the time, that whatever body or person decided this question there could not be full publicity. In view of the character of the questions involved, quite clearly full publicity is impossible. The business must be wholly or almost wholly in secret—except as regards the final result.
I should not have taken so long over what I have said but for the interruptions, quite legitimately made, I agree, and I come to my final point. I have stated that in my opinion no alternative method of procedure gives a better safeguard to the individual or to the State than the procedure we have at the present time. What safeguard then have we? We have no safeguard, and cannot have any, except our knowledge and estimate of whatever person bears the final responsibility. Whoever is the holder of the Home Secretaryship bears this responsibility, and it is only on our acceptance of his character and judgment, and belief in the assiduous personal attention that he is prepared to give to these cases, that we have any safeguard at all.
We would much rather have the position that prevails in peace-time, when no Home Secretary, no one person acting outside the four corners of the law could detain any other person. During war- 803 time we have the inevitable choice of giving unlimited freedom to individuals until they have committed a definite criminal act or of deciding that, for the safety of the State, they must be detained. If we decide that they must be detained, we must place on some person or body the ultimate responsibility of doing so. I go further: In the interests of the State and of the liberties of the individual, that final authority should rest on a person who is answerable for his general conduct to the House of Commons rather than on some body ill fitted to decide a question of this kind, like a court of law or a tribunal irresponsible in respect either of the law or of this House. Holding this view, it this matter goes to a vote, I shall vote against the Amendment, and I am authorised by those for whom I usually speak to say that they will take the same course.
§ The Attorney-General (Sir Donald Somervell)
I hope the House will think it convenient that I should briefly deal at this stage with one point which has been raised in the Debate. My right hon. Friend will deal with main questions of policy when he winds up. The point to which I refer was in particular raised by the seconder of the Amendment. The suggestion was made that the Crown, in contesting the arguments put forward by the appellants in the recent cases, was acting in a way which was inconsistent with some undertaking, explanation or understanding given to the House or arrived at in discussions with hon. Members. The appellants' contention was that, when my right hon. Friend exercised his powers under this Regulation, the man interned could at once issue a writ for false imprisonment and was, Prima facie, illegally detained. The result would be that the Home Secretary would have to particularise the grounds on which he believed that the man came within the Regulation, because, for instance, he had hostile associations or was concerned in acts prejudicial to the safety of the Realm. My right hon. Friend would further have to give the grounds which caused him to think it was necessary to exercise control over the man by interning him.
It was contended and I think followed from the argument that, when the case came on, the Home Secretary himself 804 would have to give evidence as to the grounds which led him to take that course of action. The court would then have to decide whether, in their view, a reasonable man would have come to the same belief and conclusions as had been come to by the Home Secretary. I do not think anybody in this House intended that procedure to be the result of the passing of this Regulation. It was pointed out that the Home Secretary would probably have to tell the court that he could not give the desired evidence because it would be contrary to the public interest for him to disclose the information, and certainly its sources. If in the absence of this information the court was unable to be satisfied with the reasonableness of the grounds on which the Home Secretary had acted, damages would have to be paid and the man would be set free. I believe that what I have said is a fair presentation of the argument.
The effect would not technically be an appeal from the Home Secretary but the case would be considered from the standpoint of whether a reasonable man, if in the position of Home Secretary, would have done the same, and it would mean that the whole matter would be reviewed by the court in the light of the evidence. It must be obvious to anybody who has followed this matter, that the Government never intended any such procedure. Indeed, it would make the whole business of the Advisory Committee, in which so much interest was taken and whose procedure was debated, quite futile. Who would go to an Advisory Committee whose advice need not be accepted when it was possible to go to a court of law, have the whole matter reviewed, and cross-examine the Home Secretary, and, at the end of it all, if the court thought that the information did not entitle a reasonable man to come to the Home Secretary's conclusion, the man could be let out? It is clear that this result and the possibility of review by the court had never been, I should have thought, in anybody's mind from the time when this matter started until to-day.
It has been emphasised that this power was intended as a power for the exercise or the non-exercise of which a Minister answerable to the House of Commons must be responsible. The House was, I am sure, interested when the right hon. Gentleman the Member for East Edin- 805 burgh (Mr. Pethick-Lawrence) told us what happened when this topic arose in India, and the Judges who had been asked to undertake it said that is was not the sort of duty they were prepared to do. In a case decided during the last war upon an analogous Regulation, although in somewhat different terms—the case was also upon a somewhat different point—the then Lord Chancellor used words which were adopted by one or two of their Lordships in the present appeals. The then Lord Chancellor said:It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a court of law.That would in fact be the nature of the inquiry which would have to be conducted by a court if the words "has reasonable cause to believe" were to be taken to mean what it was contended they meant. The question, of course, which it is necessary to consider in deciding whether it is right to intern is one which must depend on considerations of public danger or what might happen in the course of the war, a question which, in my view, it would be wrong and contrary to principle for this House to seek to place directly or indirectly on the judiciary. What would be the position of a Judge, doing his best in a task for which for the reasons given he was not fitted, who let out a man interned by the Home Secretary who subsequently blew up a battleship?
I should like to say a word or two as to the Parliamentary history of this matter. The Emergency Powers Act, under which this Regulation is made, made a specific reference to this power. Section I (2) of that Act said that provision might be made by Defence Regulationfor the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the Realm.Parliament passed that Act which expressly confers the power to detain persons whose detention appeared to the Secretary of State to be expedient. There could be no clearer indication from the outset that the powers asked from Parliament were intended to be exercised by the Executive. When the Bill was in the Committee stage, the hon. Member for the Combined English Universities (Mr. Harvey) moved an Amendment to leave out the words "the Secretary of State" and insert "a judge 806 of the High Court." In reply, it was pointed out that this must remain an executive act, but that safeguards in the form of Advisory Committees and so on were being considered.
It has been said that when the Debate took place on the Regulation as originally issued some statement was made on this aspect of the matter, indicating that the court should have power to review the Home Secretary's decision. That is wholly contrary to the facts. I have studied that Debate very carefully and I have also studied the changes made in the Regulation. Under the old Regulation, before any mention was made of the power of detention, the Home Secretary was given power to prescribe what articles people might have or might not have, to prescribe with whom they might associate, and to prescribe their activities in the dissemination of news or propaganda. He could do all that in regard to anybody, and was also given power to order detention. The main objections were those which were made against the provisions about control of association and so on. Other matters such as the procedure of the Advisory Committee were criticised, and much was made of the point that the power of detention was unlimited and applied to the whole population if the Home Secretary thought they might act in a way prejudicial to the public safety. In the last war, on the other hand, the analogous Regulation was confined to certain categories of people, that is, those who were thought to be of hostile origin or association. Very strong pressure was brought to bear with a view to amending the Regulation on these points, but no one in the Debate made the suggestion that it should be amended so as to enable a person detained to issue a writ for false imprisonment and to get a review of his case by the Court.
The main points raised in that Debate were all substantially met in the new Regulation, as anyone will see who will compare the new Regulation with the old. The whole thing was turned upside down; powers which were originally at large, of controlling association, propagation of news and so on, have disappeared as powers which can be exercised over everybody. Those which appear in the new Regulation appear only as conditions which can be imposed when an order of internment has been made by the Home Secretary and is subsequently suspended. 807 The provisions about hostile origin and association were set out, and if anybody reads the Debate and then reads the amended Regulation he will see both the extent of the changes and the fact that they do meet the main points of criticism raised in that Debate. In addition to those changes the words "has reasonable cause to believe" were substituted for "is satisfied." That change was not made as a result of any pressure in the Debate or in the subsequent discussions. It was made to emphasise what the majority of the House desired to be emphasised, namely, that these were cases to which the Home Secretary must direct his personal attention.
My hon. Friend suggested that I had never told the House that those words made no difference. First nobody ever asked me, and secondly they do make a difference. Those words emphasise and make clear to the Home Secretary, not that there is an alteration in the legal position in the sense that they give a resort to the courts, but that this is a matter to which he must direct his personal judgment, and of which he must personally weigh the pros and cons. Everybody knows that the scope of modern Departments is such that in many cases in which this House says that orders or decisions must be made by Ministers, the Ministers while taking full responsibility, delegate their authority or act on the judgment of trusted officials. They could not possibly carry on unless they could deal with much of their work in that way. In this case, therefore, instead of the words "is satisfied," words were used to make it clear that the Home Secretary himself must be satisfied in his own mind that there is reasonable cause for exercising his drastic powers in the interests of public safety.
§ Major Peto (Birmingham, King's Norton)
In rising to address the Chair for the first time in this House, I would like to make two points clear at the outset: first, that after listening to many Debates during the last six months, and to the eloquence and ability with which hon. Members have made their points in the short time usually available, I feel that I must crave the indulgence of the House on this occasion with even more than my customary humility; second, that it will always be my purpose to occupy the attention of the House for the briefest possible time.
808 The subject we are debating to-day appears to me to be only a part of a still wider problem, the problem of a general return to the liberty of the subject, and it is upon this wider and, as I believe, less contentious question that I would venture to offer my humble contribution on this occasion. I am aware that to allow our minds to dwell upon the future when we are fighting for our lives in the present may be considered wishful thinking. But in a Debate of this nature, for us to clarify our ideas, while facing the present situation truthfully, cannot be considered a weakness but surely only a plain duty. I know, like the millions of my fellow men and women, that if we should not succeed in this stupendous task there will be no future which we can discuss. And I know, too, that by God's grace and our own unconquerable will.. we shall win through. When we have done so, this freedom, which we shall have bought so dearly, will have to be made an accomplished fact, and upon hon. Members will lay the chief burden of achieving it.
I have been much perturbed of late by the number of responsible people I have met who seem to think that a better world after this war can be achieved only by a State organised largely on totalitarian lines. I am indeed glad of the opportunity to state on the Floor of this House my unswerving conviction that such a form of rule is as foreign to British people as it is unsuited to their Government. It is with this thought in mind that I would venture to ask hon. Members of all parties to keep before them the prospect of a return of the liberty of the subject at the earliest possible moment after this war, and I venture to suggest that we are not fighting Fascism abroad to have it riveted on us at home. I understand quite well that to fight a total war we must needs adopt some of the methods of totalitarianism and that to defend freedom in the future we must be prepared to sacrifice some of it in the present. We were warned that this would be necessary, and the whole country, with the most wonderful patience, has watched the treasured liberties of hundreds of years thrown into the melting pot. Who would have believed, in these days of modern democratic government, that we should live to see a newspaper suppressed by a mere Order 809 of a Department of State, or that we should see Englishmen, and even a Member of this House, imprisoned without trial? I am not alone in a sense of loss of these liberties held by the commonalty of our Realm for more than 700 years. Even those whose task it is to preside over the highest court of law in the British Empire are not altogether of one mind in this matter.
I would not have it thought that I deplore the steps that have to be taken by a Minister charged with so grave a responsibility during the war. I do not deplore the fact; I only deplore the necessity. Our first duty after this war is over will be to return those liberties to the subjects who have lost them, a duty which seems to many of us to have been a little overlooked after the last war. What I am now going to say may possibly expose my inexperience. I hope and believe it will not expose my ignorance. Heaven forbid that I should ever expose that in this place. I do not think that even my contribution to this Debate will fall on deaf ears. I do not believe that the ears of hon. Members are deaf. I would go a step further. I do not believe that the ears of the right hon. Gentlemen who sit on the Front Bench are deaf. They, least of us, suffer from deafness. It will be realised when the history of these years comes to be written what they, the chosen of many parties of this House, suffered from the well-nigh intolerable burden of enforced secrecy.
In dealing with the question of the return of the liberty of the subject, I am reminded of those words, spoken by that great statesman and Englishman, Lord Grey of Fallodon, on a summer evening in 1914, when he said, if I remember aright:One by one, all over Europe, the lights are going out. We shall not see them relit in our time.How profoundly true that was we here know now even better than we did. The lights of Europe have indeed gone out, almost to the last one. And here in these Islands shines, although sometimes rather flickeringly, one of the few remaining, and to defend it we have lost the finest of a generation twice. Yet those of us who come through this war alive will see those lights relit. The responsibility as to their number and the quality of the light they will give will lie on us and our generation, and we, the Commons of England, will 810 surely see that responsibility carried through. If our own light should be the first to shine again in Europe, is it too much to hope that it will shine once more on those simple individual liberties that our predecessors in this place worked and fought so long to obtain?
§ Mr. Ernest Evans (University of Wales)
In accordance with the traditions of this House, I feel very happy that it falls to me to offer a word of congratulation to the hon. and gallant Member for King's Norton (Major Peto) on his maiden speech. These sentiments would have been justified by the speech he has delivered. If I may say so, he also bears the name of one very well known to this House who, for a large number of years, was held in the very highest respect.
The Attorney-General has cleared up one or two points which were a little worrying to some Members of this House, which had been raised by the hon. Member who moved the Amendment, and which therefore I do not propose to deal with at any length. I appreciate that, with other Members of this House, I was a party to giving the Home Secretary the powers we are now discussing, and I do not wish to evade my share of the responsibility for that. I think it is a good thing, as an hon. Member has reminded us, that we should remember that it is Parliament that has given this authority to the Home Secretary. We gave it freely, and therefore Parliament is free to withdraw that authority at any time. I do not think we want to do that, but I do feel very srongly that it is the duty of this House in particular to take every possible step to ensure that the authority which we gave to the Home Secretary is not exceeded, and that the powers which we conferred upon him shall not be abused. [Interruption.] I have no doubt my hon. Friend the Member for Southampton (Dr. Russell Thomas) is a much better speaker than I am, but perhaps he will allow me to develop my argument in my own way. There is no doubt that there is a considerable amount of anxiety and misgiving in regard to this matter. That is very natural, because we are dealing with something which is an essential feature of the national character and with a fundamental principle in our Constitution, the liberty of the subject. When I say "the liberty of the subject," I am not using an empty or idle phrase; I am 811 using a phrase which in this country we all understand.
Since we last discussed this new Regulation two new factors have emerged. One is the recent decision of the House of Lords, which has brought it home to us that the powers which we conferred on the Home Secretary approximate more closely to an unchallengeable autocracy than we had imagined, and that the only place in which the exercise by the Home Secretary of his authority can be challenged is in Parliament. The second factor is that the Advisory Committee is not provided with as adequate and as efficient safeguards as we thought it was going to be. We knew some time ago that the Home Secretary in many cases was refraining from accepting the advice of his Advisory Committee. I confess, quite frankly, that when that first came to my knowledge I thought that he was in possession of some facts, of which the Advisory Committee was not aware, which were of such a strong character that he felt entitled to turn down the recommendations of his Advisory Committee. Since then, we have found out more about the matter. We know that he has turned down the recommendations of his Advisory Committee in a very large number of cases, and, what is more important, he himself tells us that in doing so he was not acting on any fact which was not known to the Advisory Committee. That seems to me to raise a very extraordinary situation.
I should like to call attention to what I believe to be four very relevant facts. The first is that it was the Home Secretary himself who appointed this Committee. It would be insulting him to suggest that he appointed a Committee in which he did not have confidence; he must have had confidence in the Committee that he appointed. It is very important that he should have confidence in that Committee; and, if I may say so, with respect, it is equally important that the Committee should have confidence in him. In view of what is happening, I doubt whether the second of those two things really applies. The second fact is that many members of the Committee—I think most of them: certainly the Chairman—have had more experience in judging the value of evidence than the Home Secretary can claim. The third fact is that the Advisory Committee devote a great deal of time 812 to the examination of every case coming before it. Sometimes, they devote days to the consideration of a particular case. I believe that to every case they devote hours. They certainly devote to the consideration of every case much more time than the Home Secretary, with all his other preoccupations, can hope to give.
§ Mr. Evans
That is my fourth point. My trouble is that so many other Members want to make my speech for me. The Advisory Committee can see the witnesses and can see the person detained. Everybody with experience in courts of law knows that it is very valuable to be able to see face to face the person charged with an offence, and to hear counsel and solicitors cross-examining. It is very valuable to bring the two parties face to face. The Advisory Committee can do that. They can see the witnesses if they wish to do so. They can see the person who is complaining if they wish to do so. How many people complaining about their detention have been seen by the Home Secretary? One? Three? Five? None. Therefore this Advisory Committee works in circumstances which create a much more favourable atmosphere for reaching a correct judgment than the Home Secretary does. Yet the Home Secretary has seen fit—I will not say to turn down; I do not like that phrase—to refrain from acting upon the advice of the Advisory Committee appointed by himself. There must be an explanation for that—there is an explanation for everything. I can think of only two possible explanations. One is that the Home Secretary considers himself to be of such high mental calibre that he can turn down recommendations by people with much more experience than he has in dealing with this sort of thing. I do not think for a moment that that is the compelling thought in the mind of the Home Secretary. The second possible explanation is that he is being guided by somebody, a person, an organisation, or some Department, whose views are not those of the Advisory Committee.
In the complicated machinery of government there must be some Departments of the State whose business it is to know a lot about a lot of people. One might as well state quite frankly that one suspects that in our machinery of govern- 813 merit there are at present Departments which make it their business to know a lot about people. I want to ask the Home Secretary, is it the case that, when he turns down the recommendations of the Advisory Committee, he is acting upon the advice or the suggestion of some Department, whether civil or military in character, which thinks itself better able to judge than the Advisory Committee is? It is very important. A Department may have great knowledge but it does not follow that it has great judgment, and knowledge and judgment are two different things. When the Home Secretary comes down to Parliament and says that he has turned down the recommendations of the Advisory Committee on so many occasions, not because he knew something that the Advisory Committee did not know, but for some other reason, then we are entitled to know upon whose advice he has acted. He cannot be acting upon his own initiative only. It would not be possible to give to the consideration of each case the amount of time that the Advisory Committee, with its greater experience, could give. On whose advice has he acted? If he can clear up that matter, he may do something to allay a great deal of the misgiving at the present time.
It is all right to criticise. My hon. Friend who moved the Amendment would seem to have a poorer opinion of the House and of Ministers than I possess. He inferred that when private Members made a suggestion it was likely to be considered but not accepted. I want to make two suggestions. The first is in regard to the procedure of the Advisory Committee itself. I am still not happy that the man who has been detained and has had his case considered by the Advisory Committee has had a fair deal. I do not blame the Advisory Committee —that is the last thing I would do— but when you are considering something which affects the liberty of the subject, a man is entitled to the fairest trial he can possibly get within the Regulations which exist and have to exist. I think that the best thing would be for the man who is detained to face his accusers. I am not asking for that because in wartime it is probably not possible, but I am asking that a man who is detained and applies to the Advisory Committee shall be able to have the assistance of an experienced solicitor or counsel who shall 814 have the opportunity of cross-examining the witnesses giving evidence against him. That is the first suggestion.
The second suggestion is that the chairman of the Advisory Committee ought to be a Judge of the High Court. There is a little difficulty about this. I am not suggesting that Mr. Justice Birkett is much more competent than Sir Norman Birkett, but I could not conceive of any better appointment than that of Sir Norman Birkett as chairman of the Committee. But that is not the point. The point is that a Judge of the High Court in this country is in a very special and peculiar position of independence compared with that of the Executive or anybody else. It would create a great deal of confidence in the country if the chairman of the Committee were a Judge of the High Court. I have heard and read that there are so many cases going before the Committee that it is impossible for one committee to be doing the job. It may be that there are several committees.
§ Mr. Evans
I only mention that for the reason that what I have said about the Committee might relate to any tribunal. These are two practical suggestions which can be carried out by the Home Secretary without any trouble. They do not involve legislation or any amendment of Regulation I8B. They are administrative matters with which he can deal simply. I must refer to the Amendment moved by my hon. Friend. I feel so strongly about Regulation 18B that I would like to take part in any vote against it, but I am sorry to say that I cannot support this Amendment, for two or three reasons. One is that it is very limited in its application, and another is that it suggests that the final tribunal shall be a tribunal of a judicial character. If my suggestions were accepted, I believe that they would create greater confidence in the country than now exists, and the second result would be that the final resulting question would not be one of a purely legal character, for which a judicial tribunal would necessarily be the best machinery.
There is another objection to the Amendment, of a much wider character. In war conditions the final responsibility for decision must rest upon the Home Secretary. In view of the decision of the House of Lords, Parliament is the only body which can exercise any authority at 815 all on the Home Secretary under the conditions that obtain under these Regulations. This is his job; it is the job we have put upon him. We must not give him any pretext to run away from that job by leasing this matter on the authority of some appeal tribunal. It is essential, in dealing with the liberties of the subject, that we should hold the Home Secretary responsible, that his shall be the final responsibility and that Parliament, and this House in particular, in future, shall exercise even more vigilance than has been the case in the past in seeing that he does that job effectively and well.
§ Mr. Spens (Ashford)
I am grateful for having an opportunity of making a few remarks again in a Debate on Regulation 18B, particularly because I have always supported 18B in the form in which it now is, although I have always, on every occasion when I have had an opportunity in this House, endeavoured in peace-time to secure in every dispute between the subject and the Executive that a court of law shall have cognisance of those potential disputes and shall have a final word in deciding what shall be done. But from the time when, originally, the Bill authorising this Regulation came before the House, I have always had in mind constantly that there was one exception in which the court of law could not interfere, and that was when the Executive responsible for the safety of the Realm had to act on suspicion and either detain persons or restrict them and so forth. Therefore, it is with regret that I have to differ very substantially in my recollection from my hon. and gallant Friend the Member for Epsom (Sir A. Southby), in that I was one who took part in the discussions following the original Debate on 18B in its old form. I am convinced that, with these views which I have held, had there been any suggestion in those discussions that the Regulation or the wording was to be altered so as to permit the court of law to have any right to interfere with the decisions of the Home Secretary, I would most certainly have opposed any such alteration and I should have fought on the Floor of this House against any such alteration. I have no record of these discussions at all, and I suffer as do most men in my profession from a gross distrust of one's memory when one is dealing with matters two years old. My recollections of those discussions is that 816 most of us felt that as the original Regulation was worded, the Secretary of State could act almost on anybody's advice without ever applying his mind to the particular facts at all.
It was said there was no sort of an alternative body before which someone ordered to be detained could put his case. My recollection of that was that what we recommended to the then Home Secretary ought to be done was that the Regulation ought to be altered so as to try and find a form of words which would make certain that the Secretary of State would apply his own mind to these cases and that the right to go before an Advisory Committee should be given in the Regulation itself. These two points, I believe, were carried out by that Regulation. I would remind the House that it was then before Norway, Holland and Dunkirk and before, I think, people realised the extent to which you might have enemy agents acting in a country at enmity with Germany and when the idea of personal attention by the Home Secretary was one which, having regard to the small number of cases we then expected the Home Secretary to deal with, was a point which was worth securing if we could. But events have happened which have brought the machinery—which I believe to be good machinery—under discussion, and very many people in this House and outside are anxious about how the matter has worked.
One of the contributing factors, of course, was that after the experience of Dunkirk a great number of Orders had to be made and were made very quickly. But to the credit of the Home Secretary it appeared to me then—and I was anxious about it—that although it must have been quite impossible for the Home Secretary to have applied his own mind to all these cases, one does remember that during the following month every single case was reviewed, and reviewed with care. During the period that has since elapsed, the Home Secretary has thought fit to differ from the views of the Advisory Committee. I do not take the view that that necessarily means that the Home Secretary is acting on other people's advice. I know nothing about it, but it does strike me that if one was the Home Secretary, one might have to act more cautiously than even the most experienced and wise president of an Advisory Committee. I am 817 inclined to think that as president of an Advisory Committee I could faithfully say that I saw no reason, on the facts before me, why a man should be kept in prison. But the Home Secretary is responsible for being absolutely certain that a man shall not be released unless he can be absolutely safely released, and I could see myself conceivably saying, "I cannot take that chance of risk to the safety of the country." The attitude of the Home Secretary, who, above all things, must have the safety of the Realm as the most important point in his mind, must be different, and almost certainly will be different, from the attitude of a person in a judicial or semi-judicial position who will judge on certain materials whether or not one comes to the conclusion on "Ought this man to be detained or let out?"
It is because the Home Secretary is responsible for the safety of the Realm that, important as the liberty of the subject is— and I hope no one will think I do not put the liberty of the subject as one of the highest of our liberties—the safety of the Realm must take precedence over everything else. The safety of the Realm must be in the hands of the Executive and in the hands of nobody but the Executive. I agree with the right hon. Gentleman the Member for East Edinburgh (Mr. Pethick-Lawrence) that you cannot give any tribunal the right to decide whether or not a suspected or dangerous person can be at liberty or be locked up. You have put the office of the Home Secretary into commission, and you would be giving that body the responsibility for the safety of the Realm and giving it to a body that is not responsible to this House or to any other body in the Kingdom. You would be making the gravest constitutional mistake that could possibly be made. The whole essence of our Constitution is that the executive Minister should be responsible for his actions and responsible to this House. One of the outstanding happenings of this war is that this House has been functioning constantly on this very subject of Regulation 18B. There has been protection of the subject by the very interest which has been taken by Members in all parts of the House in this very question. Therefore, I am sorry to say that I find myself in disagreement with my hon. and gallant Friend the Member for Epsom. 818 I have never been able to support any suggestion that any tribunal with power to decide should be brought into this question of dealing with a potentially dangerous person.
Now let me come to the other point. Is it possible to improve in any way the existing machinery? That is the point to which the House, in my view, ought to address itself. Suggestions have been made which, I am sure, will be well considered by those who have to deal with these matters. I have heard one other criticism made, more in jest, in this House and another place, but which ought not to be capable of being uttered at all. It is that the time may come, or the Home Secretary may come, when a Member of either place might find himself refraining from daring to voice his criticism of the administration of this Regulation for fear that he himself might be immediately detained. At present each Member of this House and another place is subject to this Regulation in exactly the same way as any member of the public, and it would, indeed, be unfortunate if by fear of any process against ourselves any Member should refrain from being pertinacious and determined in criticising the administration of this Regulation when he thought criticism was necessary. I wonder whether it is not possible to try and make that criticism of even less force than it is at the present time. I doubt whether there are a great many of us here who would not be pertinacious, and determined to continue to be so, when we thought it was necessary. It has been suggested that it might be a good thing if it was agreed by the Government that should it become necessary to detain any Member of this House, it should be the obligation of the Home Secretary at once to report in detail to a Select Committee of this House the grounds on which he was acting, and that the committee, sitting in secret, should report to the House whether or not it was satisfied. My hon. Friend the Member for Lowestoft (Mr. Loftus) made that very suggestion in a letter to a newspaper.
On the other hand, it has been suggested that it would be a grave mistake to say that in this matter Members of the House should be put in a different position from members of the public. I do not take that view. In the administration of this Regulation, the public safety lies 819 in the hands of Members of the House, and we must be absolutely free on all occasions and completely fearless in voicing criticism of the administration of the Regulation. I do not believe that if the Government were to let it be known that they would consider that suggestion favourably, the public would think we were asking to be put in a special position. We are not asking that. All it would mean would be that instead of an Advisory Committee being the body which would investigate the grounds on which a Member of Parliament had been detained, there would be—what to my mind would be a much more proper body—a committee of his fellow Members of the House. That is the only additional suggestion which I can make as regards the administration of the Regulation. Like one of my hon. and learned Friends, I hope that all the suggestions that are made in this Debate will be most carefully considered.
Of course, I never forget that almost every night I sleep within a few miles of German guns and that a certain part of the area which I represent is within the range of those German guns. It is true that we have passed a long way from the feelings of this country in July and August, 1940, but in some parts of the country, I am sure, the vast majority of the people feel that those who are responsible for defending our homes and our shores must be trusted with powers which they can exercise equally, without fear of the consequences, and in haste, if necessary, and that the House should see that, if they are acting in defence of the Realm, even though they may make mistakes, they have got to be supported.
§ Mr. Moelwyn Hughes (Carmarthen)
I want to turn back to the subject raised by the Amendment, that is, the consequence of the decision given by the House of Lords in the Liversedge case. The main purpose of the Amendment is to complain against the abolition of the judicial safeguard in regard to detentions made by the Home Secretary in the exercise of his powers under Regulation 18B. The first question that occurs to one is whether the House, when it agreed to the Regulation, excluded the power of the courts to review. As far as the courts of this country are concerned, the matter was decided by the Liversedge case, but —and in saying this I do not wish to show 820 any disrespect to the majority of the judges who decided that case—the words as they now are still leave room for doubt. Lord Atkin would not thank me for praising him as one of the greatest Common Law judges of modern times, but I suggest that the very fact that Lord Atkin has dissented from the judgment of the majority means that the words now to be found in the Regulation are not crystal clear.
I feel that the Government should take their courage in their hands, confident that they will get the support of the House, and so amend the Regulation as to include in it, in express terms, the fact that recourse to the courts is excluded. I am fortified in saying this by what has been said in the course of this Debate about what went on in the House and at the informal conference It is strange that, if the Government thought that the Amendment of the words—from "The Secretary of State, if satisfied …"to" The Secretary of State, if he has reasonable cause to believe …"—had the effect that the Home Secretary could still act without review by the courts, they never said so in terms; and it is even stranger if, as we have heard from the hon. Gentleman who moved the Amendment, the critics thought that the result of the Amendment was that the Home Secretary was subject to review by the courts, they never said so. In view of these doubts, I suggest that the matter should be put right by an appropriate Amendment of the Regulation.
It is said that the Home Secretary and the Government need greater powers in this war than the Government needed in the last war because the dangers are greater. I suggest that the dangers in this war which such Regulations as Regulation 18B are designed to meet are not only greater dangers, but dangers entirely different iln kind from those which we have known before. The situation with which the Home Secretary has to deal is not different because in this, war there are Quislings. This is a different war, and it is because it is a different war that there are Quislings to be dealt with. The Quislings and the quasi-Quislings are, in fact, the inevitable products and symptoms of the present war, which is not, as old wars were, a war between sovereign States. It is a political war, a war that can be described as world civil war, a war in which there is a conflict between com- 821 pletely irreconcilable political ideals. Among those who were responsible for declaring Great Britain to be at war, there were many who were moved purely by motives of balance of power and Imperialism, moved only because they saw that Hitler was becoming too powerful and might endanger the Empire. But I am certain I am right when I say that the vast majority of our people were moved into action because they believed that Hitler's regime and Mussolini's regime had to be dethroned or civilisation would be damned. The dangers which arise from such a political war have to be faced.
My right hon. Friend the Home Secretary has to arm himself with powers to meet three dangers. The first arises in respect of aliens of hostile origin. Naturally the House will agree that the responsibility of the Home Secretary to satisfy himself that these aliens do not constitute a danger to the State is heavy, and there has been no complaint against his actions in this respect. The second category comprises traitors, and the House does not grudge the necessary powers to deal with these people. Into the third category come the Quislings and quasi-Quislings. This is the most difficult category of all. Many of these people believe in and see no harm in the system against which we are fighting, The danger is not physical, but moral. If the dark day comes, against which we have been warned, and this country has to face greater tribulations, then will come the opportunity for those who do not see any great harm in the Nazi or Fascist systems to whisper words of compromise. To some extent this danger has been foreseen in the Regulation. Regulation 18B makes specific provision for dealing with organisations controlled by those who have sympathies for a system of government of any Power with which His Majesty's Government are at war. That is the test of a Quisling organisation. It is a political test and not a legal test, and if this test was handed over to the courts of law, it would place an impossible task upon Judges, not only for the reasons which have already been put forward, but because a Judge would have to make known his own political views in assessing the system of a hostile Government.
I now wish to ask the Government to amend the Regulations still further, so that they have power to deal with quasi-Quislings and Quislings, instead of having 822 their powers limited to proscribed organisations. As Regulation 18B stands, the Home Secretary must first proscribe an organisation before he can interfere with any individual who is sympathetic to a system of government against which we are fighting. If we are to deal satisfactorily with Quislings, we must extend our powers so that individuals can be caught. Where are these individuals to be found? We have heard many suggestions in the course of this Debate that people have been wrongfully detained, but I can assure the House that I have heard many comments made outside because people are at large who ought to be detained. Before the war started there were prominent people in this House and in another place who established themselves in public opinion as people who wished this country to be friendly with the regime against which we are now fighting. Some of them even wrote books extolling, in a qualified way, this kind of system. Many Members of this House and many public men have been to Germany, and when they returned they stated, although they could not agree with the Nazi system, that Hitler had done a lot of good. They said the same thing about Mussolini and his system. I want the Home Secretary to review all the cases of those who before the war declared themselves friendly to Germany.
§ Dr. Russell Thomas (Southampton)
Is the principle of the hon. Member that he wants to lock up his political opponents?
§ Captain W. T. Shaw (Forfar)
Will the hon. Member say whether he wishes to go back to the last war and include speeches made by hon. Members during that war?
§ Mr. Hughes
I should be quite satisfied to apply this principle to speeches made round about the time of Munich. This Amendment. has been supported in this House and elsewhere by people who were not so prominent before the war in condemning the regime we are now fighting. If the country is to be satisfied that everything is being done to protect its interests, the Home Secretary should extend his powers and stretch his net still further to catch even more than he has under Regulation 18B.
§ Major Maxwell Fyfe (Liverpool, West Derby)
I do not think the House would wish me to follow the hon. Member for Carmarthen (Mr. Moelwyn Hughes) in the fascinating prospect of how the provisions 823 of this Regulation could be extended. Despite his eloquence, most of the considerations which have been put before the House are concerned with limitations. Without any disrespect to the hon. Member, I should like the House to try and assess the value of the criticisms which have now been put forward for the fourth time against this Regulation. The main purport of the Amendment we are now discussing relates to the abolition of recourse to the judiciary in matters of this kind.
Whatever else is in dispute, it is clear that that abolition took place two and a half years ago, and it is clear to everyone, with the exception of my hon. and gallant Friend the Member for Epsom (Sir A. Southby), that that abolition was intended at the time. Four points seem to me to make that manifest. In the first place, not the Regulation, but the specific words of the Act, authorise a restraint of liberty of this kind, and, as far as the Act is concerned, it is impossible for this House to divest itself of any responsibility therefor; in the second place, it was made clear in the last war by the highest tribunal in the land that the last thing the courts wanted was to decide a question of this kind; in the third place, you have in the provision of an Advisory Committee an obvious check on Executive action as opposed to an appeal to the judiciary; and, in the fourth place, it has been made clear to-day that no one raised this point in the discussions that took place on the amendment of the Regulation. How in face of these facts there can be a complaint that now there is grave concern as to the meaning to be given to it, I fail to see.
§ Mr. Silverman
Does the hon. and gallant Gentleman agree that in fact the change of words in the Regulation has not reduced the actual positive power of the Home Secretary at all, and does he say that when the old Regulation was taken back that was because the House wanted the old powers to be retained?
§ Major Fyfe
I am much obliged to my hon. Friend, because he has put his finger on the kernel of the matter which is interesting most of us to-day. I say emphatically that the right was reduced, and I ask my hon. Friend to follow me in my argument to see whether he approves. In the first case the Regulation was limited to those of hostile origin or those who 824 had been guilty of prejudicial acts and whom it was necessary to control. When the question of the British Union of Fascists and the National Socialists came up, it was considered, and, I think, rightly considered, that they were not covered. Therefore Regulation 1 (a) had to be brought in in order to cover those people who belonged to an association whose leaders might be in touch with a foreign Power or might be guilty of prejudicial acts or who themselves could be shown to have been guilty of those acts. I put it to my hon. Friend to consider whether under the Regulation as originally drafted, these people could or could not have been gathered in. In my view they could not, and therefore the first form of I8B was restricted. It was added to in order to deal with associations like the British Union of Fascists.
Then I would ask my hon. Friend to address his attention to 1 (b), which says that in areas to be prescribed by the Home Secretary where there is a danger of enemy action, like the areas graphically described by my hon. and learned Friend the Member for Ashford (Mr. Spens), then in those areas and those areas only you can intern people who have by previous speech or action shown a predilection to the enemy. Under the old Regulation you could have interned these people everywhere. Under the present Regulation, apart from the restricted area I have mentioned, you cannot intern people for the holding or expression of views. Therefore, we have in these three matters, which I suggest are vital and essential matters, a difference made by the alteration of the Regulations which followed the desire of the House.
I only want to say very generally the reasons for which I support the Government. In my view, in a time of national emergency, public danger is of more importance than private liberty, because that danger may swamp the chance of any private liberty in future. Secondly, I say that we ask for and are content with a regulated liberty so long as that liberty is regulated by this House. It is idle for anyone to-day to draw analogies between this time and 300 years ago. To-day we are dealing with Parliamentary power; three hundred years ago they were dealing with powers exercised in the face of Parliament. From these points of view the matter must be considered in pro- 825 portion to the powers that Parliament has given to the Executive with regard to the ordinary citizen of the land. If you can take the work, the career and the life, if necessary, of the person who is unsuspected, then to protest against a power like this in respect of persons reasonably under suspicion is to get the war effort and every other thing to-day out of proportion.
I want to say this with regard to the practical side of the matter. In their Amendment by hon. Friends have proposed that there should be recourse to a tribunal after a certain time has elapsed. They have both admitted that this is not to be a hard and fast rule, but we have to deal with the Amendment as it comes before the House, because that is what we are to vote upon. They suggest that after this power has been exercised then, sometime later, at a time, let me point out, when the recollections of witnessses may be dimmed, and after a delay which may not have seen any change in the war situation, the matter should come before a tribunal with all its disadvantages. [Interruption.] Either the witneses are to be brought forward or they are not. If they are not to be brought forward, then you cannot have a judicial procedure. If they are to be brought forward, you are again endangering the security of the State and your war effort and war machinery. It has other disadvantages in addition to the disadvantage of delay and blunted memories. For that proposal, I say with all respect to my hon. Friends, no case at all has been made out.
In the end we come back to this point: Either there is a justiciable issue or not. We say there is not a justiciable issue, but a matter for the Executive to decide according to the interests of the State, and we say that we are not going to be driven by suggestions of this kind into neglecting our duties and making bad law. Our duty is plain. It is to see that the administration of this Regulation comes up to the highest standard. It is our duty to see that mistakes are not made, and I am sure we shall not avoid that duty by slipping out into methods which would lead us only into danger and disrepute.
§ Sir A. Southby
On a point of Order. May I ask, Mr. Speaker, whether it would be in order to ask the Government, in 826 view of the importance of this matter, and the large number of Members who desire to speak, to extend the time for this Debate by extending the ordinary period of the Sitting of the House?
§ Mr. Speaker
Under the new Regulations a Motion for the suspension of the Rule as to the Sittings of the House may be moved at any time.
§ Lieut.-Colonel Sir Thomas Moore (Ayr Burghs)
On that point of Order. You will recollect, Mr. Speaker, that when the Prime Minister asked last week that the Government should have all Private Members' time, I did make a suggestion that if we agreed to give the Prime Minister our time, he in turn, or you in collaboration with the Government, should have power to authorise another day's Sitting provided that 10 Members expressed a wish for it. May I suggest that this is an occasion when those 10 Members might express such a desire?
§ Mr. Speaker
The question which was put to me originally concerned the suspension of the Rule as to the Sittings of the House, and I stated that its suspension might be moved at any time.
§ The Secretary of State for the Home Department (Mr. Herbert Morrison)
I beg to move,That the proceedings on the Motion for an Address in reply to the King's Speech he excepted at this day's Sitting from the provisions of the Standing Order (Sittings of the House).It is evident that there is a considerable number of Members who wish to take part in this Debate, and the Government are not at all unwilling that the Sitting should be extended. On the understanding that we should not sit for more than an hour beyond the ordinary time, the Government would be willing to suspend the Rule.
§ Question put, and agreed to.
§ Debate on the Amendment to the Address resumed.
§ Flight-Lieutenant Boothby (Aberdeen and Kincardine, Eastern)
Some time has elapsed since I have troubled this House to listen to me, and some time is likely to elapse before I disturb it again; but I venture, in these circumstances, to ask hon. Members for their indulgence while I make very briefly one or two points upon the general question. We have had a very interesting Debate. I am sure 827 hon. Members in all parts of the House will re-echo my sentiments when I say that I have seldom heard an Amendment better moved and seconded than that of to-day. The Mover and Seconder made extraordinarily good speeches, and the Debate has been sustained at a very high level since.
Nobody who has put his name to this Amendment wants it to be destructive in any way, or obstructive. All that we want is to find a way out of a situation which some of us believe is fraught with very great danger to the State. The first point I would make is that there has been a significant change of situation since these Regulations were introduced and passed. One of the main changes is this: The Regulations were passed to give the Executive absolute power to take action in the interests of the security of the State in a condition of supreme emergency and when this country was facing, perhaps, the greatest peril it has ever had to face. That situatian, fortunately, has changed. We did not know then what was happening or what was going to happen; but we now see the possibility that this may be a prolonged war. Many of us thought that the powers which we are now discussing would be used by the Executive to imprison people for a period of days or weeks, or it might, perhaps, even be months, during a period of great emergency; but they are now becoming powers used to sentence people to what amounts to penal servitude for an indefinite period of years. That is one of the major causes of the anxiety of this House. The change of situation is one for which the Executive are not responsible.
I ask my right hon. Friend the Secretary of State to consider one particular point. If an enemy alien is interned, as my right hon. Friend is entitled to do in time of war, no stigma attaches to that man; in fact, a certain feeling of pride attaches to him. If any of us had, unfortunately, been in Germany at the outbreak of war we should, I think, have been a little uneasy if we had not been interned. But to the British citizen interned under Regulation 18B, or the friendly alien interned under 12 (5A), a stigma must necessarily attach for the rest of his life, and probably attach not only to himself but to his children and his children's children. We cannot get away 828 from that fact. In my submission, therefore, we must sharply discriminate between an enemy alien interned under an omnibus Order and a friendly alien or British citizen interned under 18B or 12 (5A).
I now ask the right hon. Gentleman to consider the psychological effect upon a man who feels and thinks that he is innocent, but who is imprisoned for an indefinite period without being specifically charged, and without being tried. It is a terrible punishment. Mention has been made of the Gestapo. One has to bear in mind the psychological effect upon a man who is imprisoned indefinitely without hope of appeal to any tribunal, on a charge that he does not know. It has a devastating effect. I do not think the Executive have sufficiently grasped that fact. I know of several cases of people who are interned, and who do not know why they are imprisoned. And I say that there is no more deadly and insidious form of punishment than to keep a man in prison for months, with the months extending to years, under these conditions. He does not know for how many years, nor why he is there. It is not a punishment which is at all congenial to this country—it is not a British form of punishment at all.
It seems to me that two issues arise in this Debate. The first is, who has to decide whether the Home Secretary has reasonable cause for putting these people in prison? The Attorney-General has given us a perfectly plain answer: he is the person to decide, in conjunction with the Home Secretary, and not the Courts nor anybody else. We must accept that for the moment. But there is an even graver issue than that, namely, the issue between the Executive and this House. It is quite simple: should a Minister exercise indefinitely an uncontrolled power of imprisonment? That is the issue we are debating to-day, and the issue which causes anxiety. It is a perfectly simple question of whether any one Minister of the Crown should exercise for an indefinite period, possibly of years, the uncontrolled right to imprison British subjects, and the subjects of friendly Powers.
The Prime Minister said the other day that this House had some rights in the matter, and that Members could raise particular cases. Hon. Members know well that there is one particular case which I 829 tried to raise, not only as a private Member but as a Minister; and I say it is a complete fallacy to suggest that any real power is exercised by Members of this House over the Executive. I was not informed as a Minister, I was not informed as a private Member, of the reasons for the detention of the person in whom I was interested; and no hon. Member is informed by the Secretary of State, as is very well known, of the reasons for detention. How therefore can they reach a decision? They hear the case of the man who is interned, but they do not hear the other side of the case from the right hon. Gentleman, and so they cannot possibly come to an unbiased conclusion. They have therefore no real power in the matter at all. One can talk about particular cases for 20 minutes at the end of a Sitting, and, as one hon. Member says, it is probably not reported in the Press. And that is the end of the matter.
I therefore venture to suggest that to pretend that this House exercises a real control over the situation is really riding off the whole question. This House exercises no effective control over individual cases, because the right hon. Gentleman has no more reason to disclose to Members of this House the reasons for a particular detention than he has to disclose them to the victim, or even to the Advisory Committees. The right hon. Gentleman has absolute power to withhold or to give such information as he thinks fit, not only to hon. Members, but to the public at large, but even to the Advisory Committees.
§ Mr. Stokes
Is my hon. and gallant Friend not aware that the Home Secretary has repeatedly said that he discloses the full case to the Advisory Committee, that every bit of evidence that is before him is before the Advisory Committee and that it, subsequent to the appearance of a person before the Advisory Committee, more evidence is forthcoming, that also is laid before them?
§ Flight-Lieutenant Boothby
I hesitate to challenge that statement, but I do not think that is quite the case. I think the right hon. Gentleman discloses to the Advisory Committee only what he thinks it is in the interests of the State to disclose.
§ Flight-Lieutenant Boothby
We will deal with that point when the time comes.
830 Another point which has been raised seems to me to be important, and that is the question of the right hon. Gentleman's power over Members of this House, which again seems to cramp our style to a certain extent. I am not intimidated, but the fact remains that it is possible for the Executive to imprison a Member of this House without making any explanation to the House; and I cannot think that that is a situation which can be tolerated indefinitely in what may prove to be a long war. It is an arresting and rather disturbing thought that if Charles James Fox had been alive to-day and had made any one of the series of speeches he made during the Napoleonic Wars he would not have survived these Regulations for ten minutes. He would have been in Brixton jail after the first speech. If hon. Members do not believe me, I recommend them to read, as I have recently done, some of the speeches of Mr. Fox in the Napoleonic Wars.
But the gravest feature of the present situation to my mind, and, I think, to the minds of many hon. Members, is the absence of a specific charge or charges against the individuals concerned. The proposition that it is right, in any circumstances, at any time, to imprison a man without charging him is, to my mind, absolutely indefensible. I do not think that the right hon. Gentleman could possibly defend that proposition in the House to-day. If only we could be quite certain that in all these cases the individuals concerned knew the case they had to answer it would be different—but they do not. I assert and I challenge contradiction that they do not know the case they have to answer in many instances, or at any rate the full case they have to answer. They are not specifically charged before these Advisory Committees. I am at a loss to understand how anyone can seriously defend the proposal that it is right to imprison a man for a period of years in those circumstances. That does seem to me to be quite indefensible, and the negation of justice as I understand it.
We are not out, as I say, to make destructive criticism. We are only trying to get out of a mess into which, I think, the House, with the Executive, have got. We want to find a way out. We were just as responsible as the Executive. We ought not to have passed the Regulations in their present form. A lot of Mem- 831 bers passed them under a complete misapprehension. Many Members did not realise the full implications. If they had done so, they would not have passed the Regulations in the form in which they were passed. I think it unreasonable for the Executive to take advantage of the flow of patriotic fervour which was going through the House at that time, by absolutely refusing to modify these Regulations in any way, when the House is manifestly uneasy about them. What we ask is that the Executive should help us to rectify that mistake.
What is it, fundamentally, that we are asking? It is that, after a certain period of time, these unfortunate people should have the right to re-submit their case to an independent tribunal with a judicial chairman if possible. I emphasise that point—with a judicial head if possible. We are also asking that they should have the right to brief counsel if they want to do so, and to call evidence in their own defence.
I, personally, would make one final point. Where it is a case of suspicion only, where nothing has been proved or can be proved against an individual, it may be necessary in the interests of the security of the State to put certain restrictions upon that person. But let there be a differentiation between such an individual and an individual against whom something is proved. I would willingly have all traitors to this country shot, but their offence must be proved. If you cannot prove it, then differentiate in your treatment of the man against whom you have no proof. If it be necessary, in the interests of the State, to put certain restraints upon that person's movements, in the form of some house or district restriction, then do so; but let this abominable stigma be removed from one who may well be innocent—a stigma which, as I have said, may attach to him and his family for the rest of his life. That is not an unreasonable request. It is a constructive suggestion.
The Amendment has been framed in the most moderate terms. We do not ask for a final answer to-day. The last thing we want to do is to defeat the Government. Nobody wants to put this Government out. We want to meet the Executive. But we ask the Executive to go a little way to meet us.
832 The right hon. Gentleman, in a speech which I read the other day, described the supporters of this Amendment as "soft." I think that that shows that he, to some extent, misconceives the issue. It is a very old issue. It is the simple issue of individual freedom and justice. It interested the Barons at Runnymede—and I never heard them described as soft. It interested Mr. Pym and Mr. Hampden in this House, in the reign of Charles I— and I never heard them described as soft. This issue re-echoes through the pages of British history; and the right hon. Gentleman knows that very well.
I think it reflects great credit upon this House, and shows that this House at any rate is not soft, that the issue has been raised in these terms here to-day. This is not entirely a military war. It will not be decided only on the field of battle. It is a war of ideals. As somebody has said, it is an international civil war. If we are fighting for anything, we are fighting for the principles of individual freedom and justice. We shall not further our cause by denying for one moment, even under duress and stress, either of those two principles of individual freedom and justice. On the contrary, we shall increase our strength and raise our prestige, not only here at home but all over the world, if the suggestion that we are denying freedom or justice to any individual is removed, as it can be removed by the Government.
§ Mr. Pritt (Hammersmith, North)
I cannot help thinking that the course of the Debate has somewhat narrowed because of the very large coincidence of opinion that the ultimate responsibility must rest with the Home Secretary, and that the real question is what kind of safeguards we can have.
§ Commander Bower (Cleveland)
I think it is important to point out that that coincidence of opinion is among the legal Members of this House, who are, plainly, advocates, and who could as well make a case for the other side.
§ Mr. Pritt
I have not noted which of the speakers were lawyers, and which were not. The statement of the hon. and gallant Member can be checked up in the OFFICIAL REPORT to-morrow, and we shall see whether it is correct. The point has been made that the judicial check is not the most satisfactory one to adopt. On 833 that point, one wants to bear in mind that there are two kinds of judicial checks, the first, which is a judicial check in the nature of some judicial tribunal to sit and hear, by way of advice or otherwise, a case, and then to advise the Home Secretary, is not one that attracts many people. The other is bound up with the recent decision—which I do not want to discuss—as to whether certain issues are or are not justiciable. In connection with that, I derive some amusement from the really convincing argument of the Attorney-General that nobody could contemplate that the courts should have jurisdiction on that question and the express admission made by the Attorney-General in one court that, of course, he conceded that the courts should have jurisdiction. But this is an important matter, and we need not worry very much about that.
I rather like something which was said by one hon. Member—let us, by all means, stand by our liberties, but let us be careful that standing by the liberties of one individual or group of individuals will not smash the liberties of all other individuals for ever. That is the sort of thing about which one wants to be careful. I submit that it is important that the powers that have to be in the hands of the Home Secretary shall be exercised well and efficiently, in respect both of those whom you lock up or do not lock up and in respect of those whom you let out after they have been locked up. There are dangers from a good many different quarters. It does not do to assume that the public interest and public liberty are served simply and solely by securing the orthodox safeguards of the individual. It may well be we can secure public safety only by riding over certain liberties, as we have to do, and also by exercising some measure of control over, not necessarily this Home Secretary but any Home Secretary—not to see that he does not have powers but to see that he does have and exercises powers.
Let me put a position that may very well arise. The most satisfactory control which we can possibly get is some measure of democratic control. It is not easy to obtain it directly. Nobody suggests that we can have a jury sitting to hear appeals from the Home Secretary, even if juries could always be relied upon to represent the general will and feeling, but some 834 democratic control could be obtained. It could be obtained in such a way that it would drive, in certain events and in some circumstances, some Home Secretaries to firmer action as well as to more temperate action. I suggest as a practicable proposition that now the House and the Government could achieve a greater measure of democratic control, which would in no sense hamper the Home Secretary but would give the public greater confidence in the administration of I8B and would secure an actually better administrative arrangement. If various steps were taken to ensure that the public mind was really brought to bear on what was happening and what was not happening, one thing that would certainly be done would be—again, one must say within the limits of the security consideration—to secure the fullest possible public statement by the Home Secretary in respect of every individual whom he detained. It need not necessarily loom very largely in the newspapers, but it could be published in the "Gazette," and if anybody was interested and knew the parties, the statement could be republished. It should give the general grounds or reasons why a particular person had been detained. I dare say that a great many Home Secretaries would welcome the opportunity, not of assuming that responsibility, but of letting the public know how they were facing their responsibilities.
It ought also to be possible, in exactly the same way, to publish in full the reports of the Advisory Committees, at any rate, after the Home Secretary had had an opportunity of considering them. Further consideration might be given, and again, this would be a check upon a slack government and on a government which had not its heart in promoting the democratic cause, and it would be an encouragement to any government that wanted to fulfil its duty properly. It should be part of the standing routine and procedure that the facts in every case should be passed on to the Director of Public Prosecutions for consideration. There must be a large number of people whom it is right and proper to detain and against whom no criminal offence can be proved and against whom no offence can be alleged. But in cases in which it was considered that there were fair and proper grounds for prosecution, the matter should be automatically considered by the Director of Public 835 Prosecutions with a view to ascertaining whether a prosecution could be undertaken. It would be a matter of responsibility for the Attorney-General in any particular case to say that it was not in proper form. The result would be that a certain number of the more serious cases would be brought to trial.
I am not suggesting, of course, that the people who were brought to trial on a charge of treason, or whatever it might be, and acquitted would necessarily, thereafter, be released from internment because there might still be good reason for their internment. But if the public could know that, in every case of internment, there would be a prosecution whenever there was reasonable evidence of criminal offence there would be a great increase of public confidence and public support for the administration of Regulation 18B. A large number of people in the country who support the Government are very suspicious of the number of people who have been interned and also of those who have not been interned. They clamour about it and say, "Why are they not prosecuted?" I believe it would be great gain if every case that could be ventilated in the criminal courts were so ventilated. I would be glad to see the various improvements I have suggested carried out, although they are not in the Amendment. I gather that it is not proposed to press the Amendment to a Division but if it were so pressed I certainly could not support it.
§ Mr. Pickthorn (Cambridge University)
I think the general issue has been quite clear to the House, and I feel no doubt that the majority of the House believes there must remain some arbitrary power in the Executive and that the Home Secretary is the proper person to exercise it. I do not think there is any very wide measure of grievance about that point, but I do wish to suggest that there are still several questions that might be asked. One of them is this: Is everything done that can be done to make the penalty as light as possible? It has been said throughout that this detention is not punitive, and, of course, it is not punitive in intention; but it is extremely punitive in effect. It has one punitive effect which even the hon. and gallant Gentleman the Member for East Aberdeen (Flight-Lieutenant Boothby) did not indicate to the House, and that is that in the case 836 of a detained person who is released after six months or more there is no sort of place for him in the world. I think there should be the responsibility upon the Executive, if it is to have this arbitrary power, to make quite certain that when an Order for detention is revoked, everything that can possibly be done should be done both to alleviate the effect on the person concerned and to allow him to be useful, either by permitting him to fight or work for his country or by doing whatever might be possible.
There is another point where this question may arise. Lord Maugham, in his judgment in another place, referred to the inferiority of the drafting of Orders-in-Council as compared with the drafting of Statutes, particularly as they do not have the ordinary three Readings and Committee and Report stages. The drafting of an Order-in-Council is not scrutinised as is the drafting of any Statute. That does seem to me to make it all the more incumbent upon the Executive to give the House, either in some formal or informal way, from time to time an indication as to the ways in which it would wish to have these Regulations altered or improved. The Home Secretary now knows, no doubt—although we knew it before—that Amendments are not in order when these Orders-in-Council come before the House for approval. He then made a kind of half promise that he would consider the possibility of consultation with the House about possible Amendments of these Regulations, and I ask that the Government should again consider whether something of that kind may not be done.
The third question which I think still remains is this: Is the Advisory Committee everything that it should be and nothing that it should not be? I have never heard any very conclusive answer to the suggestion that the Chairman of it ought to be a Judge of the High Court. The Chairman of it was a Judge of the High Court during the last war, which, I am glad to say, I never called the "great war," and there clearly is something to be said for the advisability of such an appointment rather than that there should be a barrister, however eminent, who is likely himself to be selected for promotion to a Judgeship of the High Court.
The last thing I want to say is in confirmation of what was said by the hon. and learned Member for North Hammer- 837 smith (Mr. Pritt). I think there have been something like 1,800 or 1,900 people detained under these Orders. We all understand quite well that there must be many of those against whom a charge could not be proved with full legal forms of proof, and, secondly, that there must be another large section of them against whom a charge could be proved, but only at the cost of letting out information which ought not to be divulged to the enemys but surely, when so many as 2,000 persons are concerned, there must be some against whom a prosecution—at any rate a prosecution in camera—should or could have been possible. I believe that many disquiets would be much reduced if there were some proportion of persons detained in this way against whom prosecutions were lodged.
§ Mr. Silverman (Nelson and Colne)
I think the course of this Debate was summarised in advance by the Prime Minister at Question Time a little while ago, when he said that the Regulation in its present form was being discharged by the Home Secretary, and would continue to be discharged by him, for three reasons. The first was that he was only exercising powers which the House had conferred upon him, and expected him to exercise; the second was that any abuse of those powers could be dealt with by the House; and the third was that since no such abuse of those powers had in fact been dealt with by the House, therefore the powers had not been abused. Those of us who take a view hostile to the Government on this issue challenge the accuracy of each of those three reasons stated by the Prime Minister. Speaking for myself, if I am wrong in dissenting from them, I would agree that I am wrong in my attitude on this matter, and therefore, I shall confine my observations to examining whether the Prime Minister's claim can be maintained. Did the House confer —by which we must mean intend to confer—upon the Home Secretary the powers which he is now exercising? I say quite frankly and flatly that no one with any knowledge of the facts can think that that is so.
The House of Lords have decided—and I say this with all respect to those who during this Debate have sought with more skill than success to advance the opposite view—that the change of words in the Regulation made no difference to the 838 actual, positive powers which the Home Secretary has. It has been said in the course of this Debate that nobody said at that time—the Regulation does not say it, the Consultative Committee does not say it and the Home Secretary has not said it—that there should be an appeal to the courts. Be that as it may, I challenge my right hon. Friend to state when he made the famous speech from the Opposition Front Bench in October, 1939, whether he was not saying that the old Regulation conferred upon the Home Secretary greater power than he should have. My right hon. Friend went further and said—I am not quoting verbatim, but I think it is a fair interpretation— that these powers which he was challenging, including Regulation 18B, were such that there was no man alive capable of exercising them without injustice. He intended by that speech to induce the Government to take the Regulation back. He succeeded, and the Government took it back.
There were then discussions as to what should take its place, and a change in the form of words was made, but, if the Regulation in its amended form was not challenged in the House, it was because the House felt, and I submit it was entitled to feel—and it has the support now of Lord Atkin—that the change of words had made a difference. That is why we did not challenge it. If that be the position, and the Regulation was taken back by the Government because the House as a whole felt that it conferred on the Home Secretary greater powers than any man should have, and if the Regulation in its present form leaves him in exercise of exactly those powers, then I say that that demonstrates that the first claim made by the Prime Minister cannot be maintained, and that it is not the case that this House intended to confer on my right hon. Friend the powers which he has, and which he himself has described as being too great for any man to exercise unchecked and un-controlled. The second reason advanced by the Prime Minister was that the Home Secretary was responsible to this House for what he did. Undoubtedly, that is the whole principle of our Constitution. But how is this House to exercise control over my right hon. Friend's activities if my right hon. Friend is under no obligation to disclose to this House what those activities are? That is the position, and I hope I am stating it fairly.
839 It is true that he is bound periodically, I think monthly, to make certain returns, but there are no names, no facts and no details. We know nothing whatever of the circumstances, and if, by any chance, we know of any particular case in which, in a purely ex parte manner, we hear one side, we cannot with any sense of responsibility in these times do much to embarrass my right hon. Friend about a particular individual case, because he is always entitled to say, and I think in every instance has in fact said, "I will not tell you on what grounds I act." If that is so, it is perfectly idle to say that the right hon. Gentleman is in any real sense responsible to the House for the administration of the Regulation. If he is not responsible to the House for what he does, he is responsible to no one, and he is left in possession of powers in no sense inferior to those exercised by Himmler in Germany. I have not said—I should have no justification for saying—I most profoundly hope I shall never have any justification for saying—that he exercises them in the same way, but it remains the case, and I challenge him to deny it, that if he is in possession of powers for which he is answerable in a real and active sense to no one, and if those powers extend to the imprisonment without charge and without trial to any individual in the country, it is very difficult to imagine whose powers in any country exceed them.
The third reason advanced by the Prime Minister was that the fact that the House had not challenged the Home Secretary in the exercise of his powers in any in-dividual case, or series of cases, proved that the powers had not been abused. Of course, if I am right in what I have said so far, that proves nothing. It merely means that the House has not challenged the Home Secretary about things of which it knows nothing. It seems to me that therefore every one of the three reasons advanced by the Prime Minister for leaving the Regulation as it stands cannot. be maintained. I most earnestly beg my right hon. Friend to believe that many, if not all, of us who are uneasy about these powers, and the exercise of them, fully realise that exceptional powers are necessary and do not in the least wish to be obstructive about them. We do not want, in the interests of some fraction of liberty, to take a course which might mean the denial in this part of the world 840 of the whole principle and scope of liberty, certainly for generations and perhaps for ever. I know no one who wants the Home Secretary not to exercise stringent powers and to remain responsible for their exercise. But why in the world should he be so insistent on retaining the sole responsibility of deciding questions of disputed fact?
My hon. and gallant Friend the "Member for West Derby (Major Maxwell Fyfe) said the whole question was whether there was any justiciable issue, any issue that could be tried by a court. I agree that some of the issues involved are not so triable, but one of the charges that was made between the old Regulation and the Regulation in its present form was to provide that the Home Secretary should have powers only where in the first place certain facts were established. If he had reason to believe that there were hostile origins, hostile associations or any acts prejudicial to the public safety, he had to make certain administrative decisions which were his personal responsibility, and they could not be other than his personal responsibility. All these matters are questions of fact capable of proof. Whether a man is of hostile origin is simply a question of fact. Whether a man has hostile associations is simply a question of fact which can be determined by evidence and witnesses. In the question whether a man has been concerned recently in acts prejudicial to the public safety, the question whether they are prejudicial to the public safety may be a matter for the exercise of the Home Secretary's discretion, but the existence of the acts themselves is capable of proof and is a triable issue.
If these acts and facts are not admitted, why should they not be determined, as facts in this country are always determined, in a court of law? The right hon. Gentleman may say that he cannot put his witnesses in the box. If, however, any of these persons were charged with spying or with treachery, the right hon. Gentleman would have to put his witnesses in the box in circumstances far more onerous to him than would be the case in this kind of issue. There are ample precautions. The courts have power to sit in camera and to accept the evidence of witnesses whose names, addresses and descriptions are not disclosed, except perhaps to the tribunal itself. The course of our Secret Service 841 has not been made futile, either in the past or in the present, by reason that the Home Secretary, if he brings a charge, must prove it. I suggest to my right hon. Friend that while it is right and proper that he should retain in his own hands the administrative decisions for which he and he alone can be responsible, he is doing himself an injustice and grave injury to the cause for which we are fighting by insisting on himself determining the facts when the facts are in dispute. I do not know whether my right hon. Friend regards me as a hard reactionary or a soft progressive. I will only say that there have been in previous times in other countries, not so long ago, parallels which he is fond of drawing, in which men belonging to revolutionary parties have performed offices which have had the result of stemming the tide of social revolution and enthroning reaction in its place. I would seriously ask him to beware lest in his debating enthusiasm he stands here in this House as the self-confessed Noske of social democracy in this country.
§ Mr. Raikes (Essex, South-Eastern)
After listening to this Debate I am still convinced that the powers of the Home Secretary under Regulation I8B are too extensive, even in war time. I know that several eminent lawyers have risen in this House to defend Regulation I8B in its present form, but I am entitled to say that there are many lawyers outside the House who hold the view that his powers under that Regulation are an infringement of our liberties. It is all very well for speakers to talk about public security. We all know that public security is vital in war time, but public security is a slogan which, like many other slogans, can easily be abused. It is so easy to talk about public security, about democracy and about freedom, and to use those slogans as a cloak to avoid great issues. As to the Regulation before us, the whole House is agreed that the Home Secretary must have powers to detain in the first instance anybody against whom any suspicion rests, and we only come into conflict when we have to consider what those powers should be in regard to long-continued detention. The Attorney-General said in his speech, I thought rather lightly, that if we had any legal safeguard, any judicial tribunal, it would mean that the work of the Home Secretary and his Advisory Committee would 842 become completely useless, because everybody would then go before the Judge. I do not think my right hon. and learned Friend quite did himself justice, because it would be very easy to provide that persons could be detained without any appeal to a Judge for a period of time, and that only after continued detention, and after, if you like, an appeal to the Advisory Committee, could there be resort to the courts.
I regret that for the moment I do not see the Home Secretary in his place, because there are one or two questions which I propose to put to him, and I shall pass to another aspect of the matter until I can put those questions to him personally. I turn to the so-called safeguard which was inserted in 1939 when "satisfaction" was changed into "reasonable cause for belief." We have been told by the Attorney-General that that new phrase was put in as a safeguard, not as a safeguard which was to go to the courts but as a safeguard which would enable the Home Secretary to realise how important it was that he personally should examine the cases of internees which came before him. It seems to me that that explanation is a little thin. Unless the Government propose to appoint a half-witted Home Secretary, which of course they would not do, they would be unlikely to appoint anyone who failed to realise one of the most vital of his functions, which is to give whatever individual attention he can to the lives and liberties of persons who are completely in his hands. Bearing that in mind, I maintain that, whatever that safeguard has meant, the safeguard of telling him to go upon a reasonable belief is the same thing said in another way, and that it means nothing new whatsoever.
It was observed earlier in the Debate by my hon. and gallant Friend the Member for Epsom (Sir A. Southby) that the Home Secretary in 1939, when this Amendment was first discussed, stated that any Minister might be wicked when he had a body of Regulations such as these behind him. The House may be interested to know whether the present Home Secretary still maintains the view that there is the same possibility and temptation in regard to the Regulations which he administers to-day.
The right hon. Gentleman made it plain, and I accept his word, that the 843 Advisory Committee has the same kind of evidence at its disposal as has the Home Secretary, in considering any case. If that means anything, it is that the Advisory Committee has all the information through which a leakage might be a danger to public security. If it is permissible to give the Advisory Committee all that information without fear of leakage, what is the objection to the information being given, not to a potential advisory Judge, but to a Judge of the High Court? I have no doubt that the right hon. Gentleman will deal with that point, which has exercised the minds of many people. It is a little alarming, when the Advisory Committee is presided over by an eminent lawyer, who has had opportunities which few have had of learning the law of evidence, that the Committee's decision has been overturned by the Home Secretary in 106 out of 109 cases. In each case the turnover was against the internee. The internee was not released, after the Advisory Committee had decided that he could be released, and only in three cases did release take place. If the Advisory Committee is given so much information, and even then the Home Secretary fails to agree, I think there is a case for a further court of appeal to decide whether the Home Secretary's decision was reasonable or not.
There is the difficulty of witnesses giving evidence and being cross-examined before a tribunal. As was mentioned by a previous speaker, each case is heard in camera. In cases where a person has been informed against by persons of alien origin who have been released, even if it be wrong that the internee should know the source of the information, he should have counsel who could cross-examine the informer, in certain circumstances. It is very easy in war-time to say that injustices must take place, and that there must be injustices during a fight for freedom. We need in these times to reduce such injustices to the very smallest possible number consistent with public safety. I am bound to say that I think some impartial tribunal could act as a check upon the arbitrary power which is dangerous when in the hands of any one man, whoever he may be. The answer is made that the Home Secretary is responsible to the House of Commons and that the House 844 can always pull him up. But, as speaker after speaker has said to-day, and as every hon. Member knows as well as I and the Home Secretary, practically speaking it is impossible for the House of Commons to check in each individual case whether justice has been done or not. Nobody is suggesting that the right hon. Gentleman is deliberately doing what is unjust and nobody ever would suggest it, but the right hon. Gentleman is not infallible, and although he has had great political experience, he has not had great judicial experience. I cannot understand this objection to any limit being placed upon the powers of the Home Secretary.
The House and the Government, even if they feel it impossible to agree with the proposed Amendment, really ought to consider whether there is not some necessity for safeguards against complete and absolute power—which is what the Minister possesses to-day, without the slightest doubt. Not only has this House refused arbitrary power to any one person in the course of our long history, but, as the Lord Privy Seal has said time after time, we are to-day fighting the battle of the rule of law in Europe and in the world. We are fighting for the rule of law, and whatever restrictions war-time may bring upon us, we must not allow the rule of law, the right of the individual to go before an independent tribunal, to die away in this country in the course of this struggle, or it may well be that having destroyed Hitler, we shall have destroyed at the same time the very thing we set out to save.
§ The Secretary of State for the Home Department (Mr. Herbert Morrison)
The House has to-day conducted what I think, generally speaking, has been a very well-balanced, good-tempered and valuable Debate. That we should all have spared in the midst of a great war, in which this country is fighting for its life, a day to debate questions relating to the individual liberty of the ordinary British subject is perhaps a very great compliment to the spirit of this country, its vigilance in the cause of liberty and its willingness from time to time to survey the actions of the Executive in the very important field of matters affecting the liberty of the subject. I should like to thank Members who have spoken for the care and moderation with which, generally speaking, they have expressed their views, and for the great 845 kindness, having regard to all the circumstances, with which I, personally, have been treated in this Debate. I thought, perhaps, it would be right on this occasion, when we are following a series of Debates on the nature and administration of Defence Regulation I8B if I were to give the House, as far as possible, a factual survey of the administration of this Regulation, and an account of my stewardship during the time I have been at the Home Office. It will, of course, be appreciated that the period when my right hon. Friend the Lord President of the Council was at the Home Office was, for the most part, a period of detention, of Orders for detention. My own period has been a period, not of many detentions but of coming to the conclusion as to who could be let out. Therefore, to compare my record of releases, and agreement with the Advisory Committee or disagreement, with the record of the Lord President, would be wrong. He was the detainer, broadly speaking. Mine has been more the function of the releaser, not because I am more charitable than he is but because it so happened in the course of time.
As the basis of this Debate—the matter has been referred to by a number of speakers—it has been rather assumed, I will not say asserted, that, in the light of the decision of their Lordships' House on the recent case before them it now transpires that there is no difference between the present Defence Regulation 18B and the original Regulation which was before this House in October, 1939. On that occasion I made a speech of which I have since been frequently reminded in this House and elsewhere. Sometimes it is rather implied that that speech was against the present Defence Regulation. It was, of course, nothing of the kind. It was against the earlier Regulation. It is further implied that there is no difference in substance, as a result of the decision of the House of Lords, between the present Regulation and the original Regulation 18B. There is a very great difference between the two Regulations. I can assure the House that I should not have made the admittedly strong speech which I did make in October, 1939, on the present Regulation. That, indeed, is borne out by the feeling of the House as a whole, because, in fact, when the Regulation now in force was made it was never challenged in the House, and was never 846 debated on a Prayer in the same way as was the original Regulation. If there was no difference between the original Regulation and this one, I should have though that when this Regulation was born there would have been another lively Debate in the House, as on the first one. Let us have a look at the first one, and let those who moan under the burden of this Regulation consider what they would have been doing under the earlier one. The operative part of the original Defence Regulation 18B says:The Secretary of State, if satisfied with respect to any particular person that, with a view to preventing him acting in any manner prejudicial to the public safety or the defence of the Realm it is necessary so to do, may make an Order…—and it sets out what the Order may do. The final power conferred upon the Secretary of State is that: "He can direct to be detained," and it goes on to say:so long as there is in force, in respect of any person, such an Order as aforesaid directing that he be detained he shall be liable to be detained in such place and under such conditions as the Secretary of State may hereafter determine and shall, while so detained, be deemed to be in legal custody.That is a very wide Regulation. It enabled the Secretary of State if he were satisfied that, with a view to preventing a suspected person acting in any manner prejudicial to the public safety or the defence of the Realm, it was necessary to do so, to tap that person on the shoulder and pick him up. That is a very much wider, and much less specific, power than the power that the Government have under the present Regulation. In the first place, the present Regulation provides thatIf the Secretary of State has reasonable cause to believe.…It has been asserted that, by the decision of their Lordships' House, those words have become meaningless. That is not true. They are meaningless only in the sense that some hon. Members would like them to mean something. Taking the view which I do, I am glad that that is so; but to say that they have no meaning at all is quite wrong. They are a direction by this House, in form, to the Secretary of State that when he considers these cases of detention—and, believe me, when I consider them, I consider them myself individually, with great care, realising that the decision is mine—and when he studies these papers in connection with a proposed Order for detention, 847 he is required to satisfy himself that it is reasonable that the person should be detained. That is different from the blank and unqualified power to detain under the original Regulation. [Interruption.] If hon. Members do not mind, I have to cover a lot of ground, and I do not want to be led away any more than I can help. There is a difference between a Regulation which directs the Secretary of State that he must be reasonably satisfied and a Regulation which does not—unless it indicates that it is assumed that the Secretary of State, in administering the Regulation, is going to take no notice of the wording of the Regulation. If the assumption be that either I or another Home Secretary would not take notice of the wording of the Regulation, the instrument under which I act, I do not know what remedy there is for these difficulties which the House has been discussing to-day. That direction, which runs right through and governs the whole of the Regulation in this paragraph, is not the only thing. Instead of being a wide Regulation, as it was before, it is now a restricted Regulation, under which the Home Secretary can detain only three specified classes of persons. The first class is personsof hostile origin or associations.The second class is persons acting in furtherance of the objects of an organisation which has been defined in the Regulation, and which is regarded, and was regarded, as a danger to the State. The third class is personsrecently concerned in acts prejudicial … or in the preparation or instigation of such acts.…Persons I detain must come within one or more of those three classes. Finally, I have not only to satisfy myself reasonably that the person to be detained comes within one or more of those three classes, but I have to be reasonably satisfied that it is necessary to exercise control over him. To say that that Regulation is the same as the original draft is, I suggest, to betray a wilful ignorance of the English language and of the meaning of words. Let me give the House some particulars of the action taken under the Regulation. The powers given to me under the Regulation are, I admit, drastic. They would not have been tolerated in time of peace; and certainly I should have been the last man to ask the House to tolerate them in 848 time of peace. It is the case, as I have shown, that the policy for their operation is directly limited by the terms of the Regulation.
§ Mr. Austin Hopkinson (Mossley)
The right hon. Gentleman mentioned persons concerned "recently" in acts or conduct prejudicial to the welfare of the State, and I should like an explanation of the term "recently." Does that include the period of the last war?
§ Mr. Morrison
I am afraid that my hon. Friend did not listen carefully to what I said. The third category—I think he has not put it quite accurately—consists of personsrecently concerned in acts prejudicial … or in the preparation or instigation of such acts.I should not have thought that that went back to the last war. Obviously, that is a matter of discretion. I was about to give to the House the statistics which are, I think, up to date, and accurate, as to the action taken under the Regulation. The total number of detentions, that is to say, not the total number of persons detained at any one moment, but the total number of detention Orders made is 1,769. Of those 1,769 Orders, it is important to note that no less than 902 were on grounds of hostile origin or association. That is to say, persons who are technically and lawfully British subjects but are of enemy blood, of enemy origin or hostile origin, or that they have some association with the enemy. Under I8B (1a), which deals with the Fascist organisation, 753 persons were the subject of detention Orders. Therefore it is the case—and it is important to note this—that 1,655 out of 1,769 were either of German or Italian origin or were adherents of the British Union, and the House itself knows what that organisation was. If any House or any Government had been light-handed or soft in dealing with that organisation that Government and that House of Commons would have deserved to forfeit public confidence. That leaves, out of this grand total of 1,769, only a small remaining number, namely, 114, and the persons affected were concerned with acts which were prejudicial under the third category.
I take the last and smallest group concerned with acts prejudicial. The number now detained is only 71, and 14 of these are members of the Irish Republican Army or associated with it. The 849 others are persons whom we believe to have been concerned with acts of sabotage, attempts to get secret information, seeking to make contact with the enemy contrary to the interests and security of the State, and they are clearly classes of cases about which it would not be wise for me or anybody else to talk in detail or in public. But they are serious cases and cases in which, again, if the Home Secretary were soft or were unduly afraid of exercising power and authority, he would be a dangerous Home Secretary for the security of the country and prosecution of the war. Having said that in relation to this smallest group of prejudicial acts, I would make it plain that my general policy—and it was the policy of my predecessor—is that, where there is enough evidence for a criminal prosecution in a court of law, we prosecute. Even in borderline cases where I think there may be a prima facie case to prosecute or one worthy of legal consideration I send the papers on to the Director of Public Prosecutions for his advice. A number of hon. Members have asked me questions on that point, and I can give them the assurance that where there is ground for believing there is room for a criminal prosecution we prosecute unless the nature of the circumstances are such —and they are very rare—that it would be contrary to the interests of the security of the nation if the prosecution proceeded.
§ Mr. Stokes
In the event of a person being prosecuted under the Official Secrets Act or other Acts, if he is acquitted is he let out or kept in?
§ Mr. Morrison
It does not follow; it depends upon the nature of the case. Of the 1,769 who have been detained, 1,335 were actually detained in May, June and July of 1940. The hon. and gallant Member for East Aberdeen (Mr. Boothby) implied, or specifically stated, that the Defence Regulation had been passed in the days of extreme stress, strain and anxiety and I think he was probably thinking about the period May, June and July of 1940. But the main body of the Regulation was never passed in that period. It was passed in the autumn of 1939, which was the famous period of the Maginot Line and when there was a good deal of the Maginot mentality in this country and elsewhere, not to our good. I detect in this Debate something of a recrudescence of that mentality. We 850 must not think that because bombs are not falling this country is not in danger. Why was it that the great bulk of these people were picked up at that time? Partly because of the decision that the British Union had to be suppressed and because of the need for greater sternness in dangerous days when we might have been invaded, possibly successfully, by a ruthless enemy. It was, in short, influenced in part by the international and military situation.
Since the time of what we might call peak detentions we have had a period of increasing releases, and the reason for that is that we had effectively suppressed the British Union. We would not have effectively suppressed it if we had not been fairly sweeping in the detentions which were ordered by the Lord President of the Council—an action with which I cordially agreed. Having smashed this machine it was then possible to sort out the cases of British Union people and to examine them more at leisure to see whether some of them need not, in the new circumstances and in the light of the breaking-up of that organisation, be regarded as dangerous. Moreover, the international military situation, so far as our own country is concerned, is materially better than it was in those days after the fall of France. Finally, the Advisory Committees have done a great deal of careful work in sorting out these cases and as a consequence there has been, as the House will see, a very considerable number of releases. But it must not be assumed, because the curve of detentions went up and has since been going down, that it will always go down. There may come times when in the circumstances of the military situation or in the light of imminent invasion it would be necessary for the curve of detentions to go up again. And, providing I carry the support of the House with me, I shall not hesitate for a moment in any such changed situation that might arise, to detain every person of whom I think with reason that he might be a danger to the State in circumstances of acute anxiety.
I beg the House in these Debates, which it is quite right should take place, and I beg the Press, to remember that possibility. I ask the House not to ignore the possibility of weakening the authority of the Home Secretary, which it is important should be properly maintained, especially for the purpose of dealing with circum- 851 stances which might arise in which it would be important for him to feel that he could go straight ahead, clearly, carefully and judicially, to make detentions which he thinks necessary for the security of the country, and not to feel that there will be sharp-shooting at him in every move that he makes. The total number of releases has been 1,106, which is a very generous measure of release. The numbers now detained in the three classes are: 375 persons because of hostile origin and associations; 217 British Union adherents; and 71 for acts prejudicial—making the total number detained under this Regulation at the present time 663.
§ Earl Winterton
Can the right hon. Gentleman define those figures a little more carefully? He spoke of the British Union as if it were an ad hoc organisation which had to be suppressed. Who are the other people to whom he referred as being detained because of acts prejudicial? Are they members of the British Union or Communists; who are they?
§ Mr. Morrison
I do not think the Noble Lord was in his place, but I did deal with that matter. I come now to the procedure which is employed. In the first place, information comes to the Home Office from various sources. I beg the House not to believe that when the police or the security services make allegations against an individual, the Home Office automatically advises me to sign an order of detention, or that I automatically sign an order of detention when the Home Office staff submits it to me. Neither of those things happens. The Home Office is very independent of the police, even though it is supreme over the police, as it is right that it should be independent of them. It is independent of the security services. I seek to be independent of all of them. I take into account the advice which is given to me and the information put before me, but I do not think I need assure hon. Members who know me, at any rate, that I am not the kind of Minister who signs on the dotted line any paper that is put before him. The detention of a British subject is a very personal act, and I take very great care about it. The person is told under what Regulation he is detained, and it is a direction to the chairman of the Committee that, in order that the man may prepare himself for his defence, he shall be given par- 852 ticulars of the order of detention before being summoned to appear before the Advisory Committee.
I would like to pay my tribute to the work of the Advisory Committee. I have read every one of these hundreds of reports over the months that I have been at the Home Office. I have read them with very great care, as it is my duty to do. I have looked into the proceedings and procedure of the Advisory Committee, and I have been very much impressed by, and am very proud of, the fairness and the scrupulously judicial spirit in which the Committee do their work. It is not a prosecuting Committee. There is no prosecution before the Committee. I do not prosecute before the Committee, and nor do my officers. The Committee have-all the facts before them and judge on those facts. They do not cross-examine the detained person, they hear him; and I assure the House that not only do they hear him, not only do they not act as prosecutor against him. Rather they act as counsel in his defence by helping him to bring out the full strength of the case he has. Frequently I have come across such phrases as, "Are you sure there is nothing else you would like to tell the Committee?" or, finally, "Would you like the Committee to adjourn so that you can think about it and in case you think about something else, come back?" I assure the House that they can be proud of the spirit and splendid judicial work of these Advisory Committees, which, I think, reflects great credit on them.
§ Mr. Morrison
No, Sir, but I should not be difficult about that. The panels of the Committee are very fair, and I should like to pay a very sincere public tribute to the Chairman of the Committee, Sir Norman Birkett, who has placed the country under a deep debt of gratitude for having done this work in such a splendid way. He has set up a fine judicial standard. I am delighted to say—and many speakers have urged in the Debate that a High Court judge should be appointed—that Sir Norman Birkett, although he is now Mr. Justice Birkett, has consented to continue his work as Chairman.
§ Mr. Morrison
No, Sir. I understand that it is his intention to review the reports of the panels of the Advisory Committees so far as possible so as to keep a general oversight of their work and co-operate with his colleagues. That will not include the Italian Committee or the Scottish Committee, which are separate.
§ Mr. Morrison
My hon. and gallant Friend is not familiar with the structure. This is in respect of Regulation 18B.
§ Mr. Morrison
There is a Committee, and the Chairman of that Committee is Mr. Justice Birkett. The Committee has panels, or what we might call sub-committees, and each of these panels is presided over by a distinguished lawyer. I do not think that there would be any advantage in disturbing these distinguished lawyers, who have been very careful and fair in their work, by substituting High Court judges, particularly now that Mr. Justice Birkett, who is Chairman of the Committee, is a High Court judge. Even if Mr. Justice Birkett had not been a High Court judge, I should view with very deep concern the loss of his services, and even if he had not been a High Court judge, I do not think I should necessarily have considered appointing one. There have been reports on 1,567 cases. In many of the other cases I have been able to release without bothering the Committee. Of the 1,567 cases reported on, I have accepted the recommendations in 1,478 cases.
Let us examine the minority of cases where I have not agreed with the Committee. It is as well to split them up. Fifty are cases of hostile origin and associations, one is in respect of acts prejudicial, and 31 are cases of adherents to the British Union. In six cases I have released when the Committee recommended continued detention. I can claim only six of that class. The Advisory Committee has two distinct functions. The first is to ascertain the facts of the case, both from the applicant and from other quarters. Secondly, it has a duty to advise the Secretary of State on questions of policy, and it is not on the facts but on questions of policy that differences of opinion between the Committee and my- 854 self have occurred. I would emphasise that 70 per cent. of the cases of disagreement are cases of hostile origin and association, and many of these technically British subjects are really indistinguishable, in history, upbringing and outlook, from enemy aliens detained under the Prerogative.
Let me give an example to show how narrow is the dividing line which sometimes exists between an alien dealt with under the Prerogative and a British subject dealt with under I8B. These are actual cases. There are two sisters born, and up to recently living, in Germany. One has married a British subject. I detained one under the Prerogative and I detained the other, who has married a British subject, under I8B. IS there any substantial difference between the history and upbringing of those two women? Substantially there is none. Another case is that of two brothers, both with Italian sympathies, one born in Italy and detained under the Prerogative, the other born after the parents came here and detained under I8B. Here is a nice point for consideration on which it is perpectly legitimate to have more than one opinion.
How should these cases be dealt with under this Defence Regulation? If to all intents the person is an enemy alien, whether technically a British subject or not, my bias would be in favour of detention unless special circumstances rebutted the presumption that in a crisis he would help the enemy. In other words, if there is positive reason why he should not be detained, I would not detain him, but, unless there was, my bias would be to regard him as a person of completely hostile origin and associations and detain him. The Committee has taken the view that such a person should be presumed to be entitled to liberty—.these are generalisations; I do not say they say it in every case—unless specific reasons exist for his detention. It is this difference of opinion on the point of policy which accounts for 70 per cent. of these cases where I have disagreed with the Committee. I feel that I must deal with those cases on the same broad principles as I deal with enemy aliens. In the case of enemy aliens, I do not think the House would say now that there is undue oppression or hardship in treating them, but, as Home Secretary responsible for the internal security of the country—and a great re- 855 sponsibility it is—my view is that I must treat those persons substantially as if they were enemy aliens, and I think that my view is right in mat respect. The Committee takes another point of view. It is a matter for argument, but it is the explanation of the difference of opinion in about 70 per cent. of the cases.
Of course, there is this to be said, that, although the Advisory Committee have the facts before them—it is not true, as has been assumed, that the Committee are without the facts that I have before me— it is also true that I have the wider knowledge acquired at the Home Office. I see the police reports and a good many of the security reports and I sit at the War Cabinet frequently and I see the Foreign Office telegrams. This wider experience does perhaps give me a somewhat different outlook with regard to policy. It will be seen that the number of cases on which we differ are limited and that 70 per cent. of those cases are of the kind I have indicated.
In the British Union of Fascist cases there have been only 31 disagreements out of 753 cases—not on the facts, but on policy and on one's attitude to the individual cases. I cannot agree that it is a terrible situation that, out of 753 of these difficult cases of trying to estimate the sort of person a man is and what he might be expected to do in circumstances of stress and invasion, there should be a difference of opinion between the Secretary of State and the Advisory Committee on policy—not on facts—in only 31 cases. If the Secretary of State said to himself, "I will never disagree with the Committee because it will be nice to go to the House of Commons and say that I have always agreed with the Committee," even when he felt there were times when he ought to have taken a different view, he would not be fit to hold the high office of Secretary of State. My duty is to stand upon my own feet in the end—aided by the Committee, and I have been brilliantly aided by them— but in the end it is my decision as a Minister responsible to Parliament. If I had said to myself, "I will not differ from the Committee for fear that I may be criticised in the House of Commons or the newspapers," I should be a miserable person, utterly unfit to hold the high office which it is my honour to hold, 856 with the support, I hope, of the House at the present time. The remarkable thing is not that there have been differences of opinion but that there have not been more differences of opinion over a field which could be fruitful of argument and involves considerations of policy.
The Committee's task is very difficult. There have been seven cases of release where a mistake was made—and the Advisory Committee would admit it, and I have to admit it—in the assessment of character. In these seven cases we have had to re-detain. I will give the case of a young man who was released. He was interned because of his connection with the British Union. He may have written to Members of Parliament about it; I do not know; but he had a perfect right to do it. When he was examined by the Committee he represented that he had joined the Union because, being very young, he had been attracted by the uniform. He protested that he was loyal and patriotic and wanted to join the Royal Air Force. So plausible were his statements that I came to the conclusion that he had been swept into the union, as was true in a number of cases, mainly through boyish vanity and love of excitement and that he could safely be released subject to certain restrictions. He was so released by my order after careful consideration. Within a month of his release, a number of letters were brought to my notice in which he had expressed the most outrageously disloyal views. So I ordered his re-internment. He came again before the Committee and stated frankly that he had set out to deceive the Committee and that he felt entitled to use any falsification of facts to secure his liberty. At his second interview he told the Committee that he did not count himself as British, that he would have liked to have become a German citizen, and that he would prefer to see the British defeated rather than the Germans. This is a case against me. I signed his release. I ought not to have done so, but all the indications were that it was all right, and I was so advised, and I released him.
§ Mr. Morrison
The point is clear enough to me. So much for that side of the case. I come now to the point whether the law should be amended. My right 857 hon. and learned Friend the Attorney-General—and I apologise for having given him so much work in the courts in regard to the administration of this Regulation—in his very able speech dealt with the history of the changes in 1939, as did my right hon. Friend the Member for East Edinburgh (Mr. Pethick-Lawrence), in that very moderate and able speech which he delivered earlier, speaking so far as the matter was within his recollection. I am in the same difficulty as he is, that although I made that speech in October, 1939, it did so happen that I was not one of the Members who were parties to that discussion, and therefore, like my right hon. Friend, I cannot speak from my own knowledge. But I agree entirely with my right hon. Friend that if there had been a determined desire that the words "If the Home Secretary has reasonable cause to believe" should mean that the detained person had a right to go to the courts, the persons concerned would not have walked away content to believe that to be the case. They would have insisted upon an explicit answer on that point, and if they had not got an answer that it did mean there was an appeal to the courts, they would have put down a Prayer when the amended Regulation 18B was made. The Lord President of the Council said that he would not have accepted the Regulation if it had meant that cases could be taken to the courts for review on the merits, and he would have resisted it. We must, I consider, take it that the case on that point is substantially established.
This is not the first time that Parliament has recognised the need for extraordinary powers. Even in peace-time Parliament recognises the need for extraordinary powers. In July, 1939, Parliament passed legislation which, although it did not give power to detain, gave power to deport British citizens without trial and without any right of appeal or appearance before any Advisory Committee, under the Prevention of Violence (Temporary Provisions) Act, which arose out of the activities of the I.R.A. I can hardly add to the able arguments which have been advanced by my right hon. Friend the Member for East Edinburgh and my right hon. and learned Friend the Attorney-General and other hon. and learned Members who have taken part in the Debate. I say that substantially our case is this, that this is not a matter of a decision on matters of fact. 858 The disagreements between me and the Committee are not on facts. It is a matter of public policy in the light of a changing military and international situatoin which can only be administered Ministerially subject to the broad checks of the House of Commons upon the Minister concerned. They are not the kind of case with which the courts of law deal so carefully and with so much ability.
My right hon. Friend did quote a statement by a distinguished lawyer. Not being a lawyer myself, I have to be careful of what I say about the limitations of the courts, but I can quote again the distinguished lawyer whom my right hon. and learned Friend quoted. In the last war Lord Finlay said the very thing that Ministers are saying to the House to-day in relation to a somewhat similar Regulation:It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined which would be less appropriate than a court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person might help the enemy. The duty of deciding that question is thrown upon the Secretary of State. The Statute was passed at a time of supreme national danger which still exists.Lord Dunedin, in his judgment in the same case, said:That preventive measures in the case of the internment of persons likely to assist the enemy may be necessary under the circum stances of a war like the present is really an obvious consideration.It is. Because, if in a case of detention the Home Secretary is in a state of uncertainty as to what the courts will do, his position is bound to be one of difficulty. If the courts release cases and thereby establish principles for the administration of the Regulations, to that extent the answerability of the Home Secretary for the internal security of the country must pass.
If it is said that there should be an independent tribunal, the same considerations arise. I can imagine hon. Members who had pleaded to the independent tribunal for releases and not obtaining them, coming to the House and asking, "Why should we have these three, or four, or five somebodies merely put together in a committee playing ducks and drakes with the liberties of the people, and not responsible to anybody?" Their independence must make them non-responsible to anybody. When Questions came 859 to me asking why the independent tribunal had not released Mr. X or Mrs. Y, I should have to make the reply in all cases that the matter had nothing to do with me because the task had been given to that committee.
It was suggested that the case of a Member of Parliament is different. I recognise, of course, that it is a very serious issue. Nevertheless, I honestly do not think a different argument can be applied to Members of Parliament as against any other subject of the Crown. There has only been one case involving a Member, and I do not think, in the light of later circumstances, that the House would be disposed to press me for release in that case. I hope very much that there will be no more such cases; I should hate to have to take such a responsibility. If you try to divide responsibility so that the Home Secretary detains and somebody else can release, on appeal or otherwise, you divide responsibility for security. If something does go wrong, if the security of the country is neglected and people are left at liberty who ought not to be, it is important that the House should know whom to attack, just as it is right for the House to be concerned about people who are detained and who it thinks ought not to be detained.
With great respect, I say to the House that, unpleasant as this Regulation may be, obnoxious as it may be in relation to British traditions—it is obnoxious to me; I do not like the Regulation, and nobody is going to seek the responsibility of its administration; it is not the kind of thing which any of us would wish to invent for the fun of doing it—it is vital to the security of this country in time of war. With all humility to the House, as the servant of the House, and with great respect to the House, I say that I am willing, and am honoured, to discharge the responsibilities of this high office, as long as I am properly armed with due legal authority to look after the security of the country; but if the House thought that my powers should be so limited that I could not properly answer for the security of the country, I would sooner go back whence I came than go through the farce of appearing to hold an office of responsibility which the House was preventing me from discharging properly. I say that with all humility to the House.
860 I do not think there is any more that I can say. I wanted to finish by the time appointed, and I have done so, substantially. I do not resent the criticisms, but I wish the criticism would not come in contradictory directions and that the remedies proposed were not in conflict with themselves. I wish that hon. Members would develop a constructive and positive view of what they want instead of moving and switching from one expedient to the other as the criticism comes to light.
§ Dr. Russell Thomas
May I ask my right hon. Friend one question? It has been suggested that in certain circumstances the Home Secretary would delegate the power of detention in respect of a Member of Parliament to a Regional Commissioner. I wonder if he would be good enough to explain that?
§ Mr. Morrison
It is the case that a Regional Commissioner can detain under these Regulations, subject to the confirmation of the Secretary of State after a very short period. That would include a Member of Parliament, but it would have to be confirmed within a very short period. Of course, if communications broke down, Regional Commissioners would have to act on their own initiative. I would say, however, that I think that any Regional Commissioner who in present circumstances detained a Member of Parliament would be a very, very foolish person. I do not think it is necessary to tell them so, but if I have any breath of suspicion that any Regional Commissioner is looking around for a reason to detain a Member of Parliament, believe me, I shall give him the sternest possible advice.
§ Sir T. Moore
What would be the position if a Regional Commissioner detained the Home Secretary himself?
§ Mr. Morrison
The hon. and gallant Gentleman raises the point whether a Regional Commissioner could arrest me. I have stated the limitations of the Regulation, and it may be that in certain circumstances, if I went wrong, he could do so, but if I had advised him not to proceed against a Member of Parliament, I do not think I should need to advise him not to detain me.
In conclusion, I thank the House very-much for the spirit of this discussion and for the consideration it has extended to me. I have tried fairly, and I hope with 861 courtesy and friendliness, to explain the working of the Regulation, and why I think it should stand. I give every assurance to the House that in the true British constitutional spirit, and with that background always in my mind, I will administer it with care, circumspection and a proper regard both for the liberty of the subject and for the security of my country. That undertaking I give freely and with every sincerity, but I would now urge upon the House that if there is material dissatisfaction with this Regulation—I do not say with its administration, because that is not in the wording of the Amendment, and indeed there has been no serious charge in that respect—it would be better for the House to divide now in order that the country may know where we all stand on this vital issue, which I regard as one of security. Moreover, it is not right that I should be left in any uncertainty as to the opinion of the House. It is sometimes difficult in these Debates without divisions, and from which the old party system is absent for the time being, for me or other Ministers or the country to be sure where the House stands on a particular matter. I therefore say that if there is a material challenge, it would be better to divide. [An HON. MEMBER: "Will there be a free vote?"] There will be no free vote. It will be a vote on the Address
§ Sir I. Albery
The point which the right lion. Gentleman now raises is very important. Quite frankly, we have carried on the Debate to-day without the intention of pressing this Amendment to a Division, because it is on the Address, and to press it to a Division would be a very serious matter. To-day's Debate has not been long enough for the full development of the wishes of the House on this subject. Several hon. Members have been unable to speak, and I think it most ill-advised of the Home Secretary to try and press supporters of the Government to take a Division in circumstances which, in the interests of national unity, they would like to avoid.
§ Mr. Morrison
I do not follow the hon. Member's statement except this, that he and the supporters of this Amendment had in mind that the country and a very substantial part of Parliamentary opinion is on their side against me. I am not urging the House to take a Division.
§ Mr. Morrison
No, I am not challenging the House to take a Division. I am only saying that, in view of the criticism that has been made and of the campaign conducted in a limited section of the Press, in view of the presumption spread abroad that the country and Parliament are gravely unhappy about this, dissatisfied with the administration of the Regulation, and that in accordance with public opinion the Regulation ought to be altered in certain material particulars—I say that if there is any substantial body of opinion in this House on that point, I would sooner know my fate. Therefore, I have assumed, the Debate having been held—and in all Debates not all Members are heard—and the Amendment moved, it is now for the House to decide whether the Amendment is withdrawn, to which I do not object, or is defeated, in which case I must assume that the Regulation and my administration of it have the confidence of the House, or the House should go to a Division, and I will take the decision.
§ Sir A. Southby
The right hon. Gentleman has, in effect, challenged the mover and the seconder and those who supported 'the Amendment to a Division. I want to make this quite clear, and I think he would wish it to be made clear. He does appreciate, I hope, that the reason we did not wish to divide the House was that this involves the whole Address in reply to the Gracious Speech. Members may laugh, but if he will give the House an opportunity of dividing on this issue, and this issue alone, not involving the rest of the Address in reply to the Gracious Speech, let him come to the House and ask for a Division.
§ Amendment negatived.
§ Main Question again proposed.
§ Motion made, and Question, "That the Debate be now adjourned," put, and agreed to.—[Mr. James Stuart.]
§ Debate to be resumed upon the next Sitting Day.
§ The remaining Orders were read, and postponed.
§ It being after the hour appointed for the Adjournment of the House, Mr. DEPUTY-SPEAKER adjourned the House-without Question put, pursuant to the Standing Order.