HC Deb 09 July 1942 vol 381 cc997-1003

If proceedings are taken in virtue of any section of this Act against any person who denies that he is a national of the Power of which he is assumed to be a national by the Power or by any British authority taking the proceedings, opportunity shall be given to that person to submit the evidence upon which his denial is based to a tribunal of three persons appointed to deal with questions of disputed nationality under the Act and the decision of the tribunal shall be decisive as to whether proceedings can be taken under the Act. Each Allied Power to whom the Act applies shall be invited to appoint one member of the aforesaid tribunal to serve when the claim to be heard concerns a person alleged to be a national of the said Power. The other two members of the tribunal shall be appointed by the Secretary of State for the Home Department.—[Miss Rathbone.]

Brought up, and read the First time.

Miss Rathbone

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

As I am neither a lawyer nor a draftsman, and had not the opportunity before putting down this Clause of consulting with either of those types of expert, I am quite prepared to be told that my new Clause is badly drafted, but obviously if the Government are willing to accept the principle they can easily change that. I think the purpose of the proposal I have put down is perfectly clear. I think it was the Joint Parliamentary Secretary to the Ministry of Labour who explained to us how cases of dual nationality would be dealt with. I am not concerned in this new Clause with cases of dual nationality, but with the cases in which nobody really knows to what nationality a man belongs, and where, because he is alleged to be a Pole or a Czech, or whatever it may be, he is going to be dealt with under this Act although he himself believes that he does not belong to the nationality in question. To show the kind of case I have in mind take the case of a man who was born in a part of what is now Poland but which at the time of his birth was part of Austro-Hungary; he subsequently came to this country in childhood, but never bothered to get himself naturalised. He might have had himself entered as an Austrian, but not knowing quite what nationality he belonged to, he thought it might look better if he entered himself as a Pole, and now he finds that he is called up on the grounds that he is a Pole. Or it may be a case of a Sudeten German who was born at a time when Sudeten Germany— Bohemia—was part of Austro-Hungary. He would then become a citizen of Czechoslovakia, and is now a citizen of a German Protectorate.

There are a number of cases of that kind in which the man has not consciously deceived anybody, but in which he has allowed himself to be entered as belonging to a nationality which he now recognises he does not belong to, and whose Armed Forces he does not wish to join. It may be said that in such cases they should go into the British Army, but there is the disadvantage that they are only to be allowed to join a pioneer company, composed of alien nationals. My hon. Friend the Under-Secretary of State for Foreign Affairs has told me, in the case of a man who had lived nearly all his life in this country but who had joined the Armed Forces of an Allied Power because he thought he was compelled to when really he was not, that the legal remedy is in his own hands. The question I want to put in this Clause is, What is the legal remedy for the man who believes that he does not belong to the nationality to which he is assigned, and therefore ought not to come under the processes of this Act? To what court has he to go, and who is to decide whether he does or does not come under the purview of this Act?

The Solicitor-General

I hope that when my hon. Friend considers this matter in the light of the provisions of the Bill, she will see that the Bill itself provides a much simpler and more satisfactory method of determining questions of nationality for the purpose of any proceedings arising out of the National Service Acts, 1939 to 1941, because as I appreciate the class of case that my hon. Friend has in mind in this Amendment it is that of the persen who does not join the national Forces of an Allied Power and is then faced with the requirement of joining our Forces, because the person who does not admit being of a particular nationality will not, of course, join the Forces of that nation. Therefore, I put that point on one side. I would be very glad if my hon. Friend would correct me if I am wrong, because I wish to deal with the substance of the matter.

Miss Rathbone

Regarding the instance with which my hon. and learned Friend has just been dealing, supposing that a man who was, at one time, in an Allied Force, is now brought back into that Force? What is the position? In that case the question of disputed nationality would arise.

The Solicitor-General

I suppose it is conceivable that such a case might arise, but I do not know that any of the cases that my hon. Friend was putting before us were cases in which a dispute about nationality arose. I think it is proper to put this point on one side as. a conceivable class of case, but not one which has given practical difficulty.

Miss Rathbone

I do not wish to interrupt my hon. and learned Friend again but I think it is more than that. The point concerns a man who had been more or less coerced to go into a Force; who afterwards discovered that he was very uncomfortable there and did not belong there and who, in his own belief, realised he was not a member of that nationality, and therefore simply absented himself and went away. That kind of case, of which there are a good many, is just the kind of case in which a man ought to be able to find out definitely whether he belongs to that particular nationality or not.

The Solicitor-General

I have dealt with the Government attitude on that class of case, and as far as that is concerned, if the question is raised that somebody has joined an Allied Force, not merely under a misapprehension as to the powers of compulsion or suggestion that he should join, but also under a misapprehension as to his own nationality, then I suggest that he should raise that matter by extra-legal means. I do not wish to go again over the points I have discussed but I do wish to deal with the main class of case which the hon. Lady has put forward, that is, the class of case in which somebody says he has not joined an Allied Army, and the two months having elapsed, he becomes liable to our Acts. If my hon. Friend will look at Clause 3 (1, a) she will see how nationality is determined. The Subsection states: For the purposes of any proceedings under or arising out of the National Service Acts, 1939 to 1941, as applied by this Act— (a) a certificate issued by a Secretary of State that a person of the name and the description specified in the certificate, is, of was at a time so specified, registered under the Aliens Restriction Acts; 1914 and 1919, as a national of a Power so specified shall be sufficient evidence that he is, or was at that time, a national of that Power, unless the contrary is proved. There are two points of importance here which I am sure the hon. Lady will consider. The first is that the nationality under which a person would be registered in accordance with the Aliens Acts is based on information supplied by the person himself. Therefore it does not seem a bad thing to start on that. You start on the Home Office decision as to the person's nationality more on his own information. But assuming that some difficulty has arisen—fresh circumstances, or something of that kind—there are still the words: … unless the contrary is proved;". so that it is still open to the national to put forward in the police court, when he comes up, the plea that that information was wrong and that he can now show that he belongs to some other nationality which would place him in a different position.

Miss Rathbone

Would the man not be brought up at a police court under the Act, and is a police court a good body to decide questions of disputed nationality? Would not my proposed tribunal be a much better body?

The Solicitor-General

Having in my time appeared before my hon. Friend in a police court—I may say as an advocate—I would have hesitated on that ground alone to pass any strictures upon such a court. Seriously, the answer to the point which she has just put to me is that I do not accept for a moment the view that a court of summary jurisdiction is an unsuitable tribunal for a case of this kind. It is a question of fact, and if my hon. Friend will look through the Law Reports in the last war she will find that very difficult questions of this type arose in the police courts. In London there are the stipendiaries, and outside London there are the benches of magistrates, of whom the hon. Lady knows just as much as I do. On this question of fact, I suggest that the police court is a suitable tribunal. As my hon. Friend knows, on fact there is an appeal to quarter sessions, and on law an appeal to the Divisional Court. I do not want at this moment to change this discussion into one on the merits of our summary jurisdiction system, but I do say that it is a tribunal which is perfectly capable of dealing with this class of case. On the other hand, I respectfully suggest to my hon. Friend that the insertion of another tribunal of a new and untried sort, as she suggests, into this machinery would be a waste of time and money which would be incompatible with the serious conditions of war.

Miss Rathbone

May I appeal to the Solicitor-General to think over this point again? He rather took my breath away when he said that the police court was a good body to decide a case of disputed nationality.

Mr. Pritt

I would like to say a few words on this matter because I think it shows that the Solicitor-General has not seen all the difficulties. The first thing that the Solicitor-General said was that he assumed that this would apply only in cases where a man, disputing the suggested nationality X, and therefore automatically coming under our legislation, as applied by this Measure would, if there were proceedings, appear in a police court because he had not obeyed the National Service Acts. The Solicitor-General said, rightly, that in such a case the question of nationality would not arise at all. If I understood her aright, the hon. Lady pointed out that the position was somewhat wider when there was disputed nationality. When one comes to think it over the position is that under Clause 5 there will be, my hon. and learned Friend says a few, but I say a good many, cases in which people are sought by the Power of nationality X as citizens of X and who wish to deny it. They will be prosecuted and they will be proceeded against in the police court as deserters.

It is plain, if one looks at the words of the Amendment, that this procedure will be taken in virtue of Clause 5, because Clause 5 will be part of the necessary legal provision argued in many cases to build up the case for the prosecution. Thereupon you would get in these people's cases, if the proposed Clause were made part of the Measure, a definite provision for this special tribunal to decide the point. I want to deal, first, with the argument of the Solicitor-General. He argued, if I understand him rightly—and it is an odd argument for a lawyer—that you could get this satisfactorily decided without any lawyer at all under Clause 3 (1). The courts are sometimes the best people to decide. My hon. and learned Friend advanced the argument that you can use Clause 3 (1 a). The answer is that you cannot, because the prosecution of which we are thinking is one which will not take place under the National Service Act at all, but under the Army Act, plus the Visiting Forces Act, plus the Allied Forces Act.

The Solicitor-General

I cannot have made myself quite clear. I said with regard to the first class of case, that is the absconder case, that it would be dealt with in the way I had already mentioned in answering my hon. and learned Friend on an earlier Clause. It would require to be dealt with by extra legal provision for reasons which I have given. I confined my arguments on the suitability of the court of summary jurisdiction to the second class of case, that is, of men who did not join the Allied Forces and were then brought up as being liable to join our Forces as members of these Allied nationalities. The question of their nationality arose at that point. I endeavoured to make the distinction and I hope my hon. and learned Friend will acquit me of any desire to confuse the issue by seeming to combine the two points.

Mr. Pritt

I certainly would never assume that my hon. and learned Friend was desiring to confuse the issue. One sometimes acts involuntarily in these matters. I have not yet got to the question of the suitability or unsuitability of the police court at all. I understand that my hon. and learned Friend was recommending, as comfort to the hon. Lady, a portion of Clause 3 (1a) and I was only pointing out that it cannot possibly apply to cases that are probably most important here. I pass from that point to consider the substance of this Clause. Are the courts of summary jurisdiction the best courts to decide this sort of point? I do not very much like special tribunals, but they are sometimes useful. Under labour legislation they are of the greatest possible value The Government very often put up people on the Front Bench to argue that you must have a special tribunal because the regular courts are unsuitable for the job. I suggest that the courts of summary jurisdiction are not well suited for this job at all. The Solicitor-General says that if you look at the Law Reports in the last war you will find that the courts of summary jurisdiction decided lots of these points. It is true that they did, but the fact that you find them in the Law Reports shows that the method of getting such a point decided is, that you have to start in the court of summary jurisdiction, which brings you, in the end, to the expensive glory of being reported in the Law Reports because you have to go to the Court of Appeal—not a very satisfactory method of appeal procedure—to get it decided.

There would be this practical advantage in adopting the Clause of the hon. Lady. If you establish a special tribunal you get the matter decided fairly quickly and very cheaply without any particular publicity or fuss, and decided once for all. If you leave it to the ordinary courts, you will be saying to every litigant who is rich, "Allow yourself to be taken to the police court. Get a case stated and in six months' time, at an expenditure of probably less than a couple of hundred pounds, you will have it decided." Or, saying to the poor man, "We are sorry, but as you are poor you must go to the police court. The magistrates will not understand a thing about it. They will decide the way that they think is the easiest and simplest, and in accordance with the passport position 20 years ago. You will have the right of appeal which you will not be rich enough to exercise and you will go into the one Army in which you do not want to serve." In all those circumstances, little as I like special tribunals, I think they are a little better for deciding questions of this sort, and I suggest that the Committee would be well advised to give a Second Reading to the new Clause moved by the hon. Lady.

Question, "That the Clause be read a Second time", put, and negatived.

Bill reported, with an Amendment; as amended, considered; read the Third time, and passed.