EVIDENCE AND POWERS OF ATTORNEY BILL [Lords] (Hansard, 15 April 1943)

§ The Attorney-General (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
I will not detain the House long, but I should perhaps explain that the main purpose of this Bill is to extend the facilities for the taking of oaths and the swearing of affidavits of British subjects abroad. Earlier in the war an Act was passed enabling my noble Friend the Lord Chancellor to authorise officers in the three Services to act as Commissioners for Oaths. At that time the U.S.A. were the Protecting Power and their diplomatic and consular representatives were enabled to fulfil these functions. Now that Switzerland 1496 is the Protecting Power there are difficulties, arising out of Swiss law, as to their representatives doing this and the result is that there are prisoner of war and internment camps in which there are at present no facilities for the swearing of affidavits, the taking of oaths, powers of attorney, and so on.
Clause 1 of this Bill would enable the Lord Chancellor to authorise proper persons—camp leaders, officials and so on—to perform these functions. The other part of the Bill deals with matters which have arisen in connection with the same subject. Clause 2 enables airgraph photographic copies of powers of attorney to be filed in the registry where these things have to be filed. Clause 3 makes it clear that if, in connection with this procedure, people commit perjury or forgery outside the United Kingdom that can be dealt with as a crime as if it had been committed here. That is the general purport of the Bill: I think it is quite uncontroversial and I hope it will commend itself to the House.

§ Dr. Russell Thomas (Southampton)
I will not keep the House for more than a few minutes but I want to put one or two points to the right hon. and learned Attorney-General about this Bill. I am sure the House welcomes it as an extremely valuable Measure which will have the effect of easing proceedings in many different matters. The Bill gives power to the Lord Chancellor to make orders to extend the powers of taking an affidavit to master mariners, camp leaders, non-commissioned officers, privates and so on in both prisoner of war and internment camps. The Attorney-General told us that the U.S.A. was formerly the Protecting Power and that the Swiss Government have not been able to act in that capacity owing to certain difficulties which need hardly be gone into now. I am sure we are all grateful to the U.S.A. Government for the functions they fulfilled up to the time they came into the war. I would, however, like to put this point to my right hon. and learned Friend. The U.S. Government came into the war 18 months ago and ceased to be the Protecting Power at that time. Since then, the number of prisoners of war must have increased very considerably. I do not want to bring up any mishaps of war which have been inevitable—we are bound to have setbacks—but since America came 1497 into the war we must remember that a large number of naval ratings and merchant seamen have been made prisoners through mishaps at sea, that we have lost prisoners in land battles in Africa, that British civilians in Hong Kong. Shanghai and Malaya have been interned and many of them transferred to Japan and that we have lost a large number of men, as prisoners, as the result of the fighting in Malaya, Singapore, Burma and other places. All that has happened since America ceased to be the Protecting Power. The object of the Bill is to facilitate matters for internees and prisoners of war who have connections with people at home in a business way, and also in matters of debt, divorce and so on.
I cannot but feel, however, that during the last 18 months a good many complications must have take place at home. Indeed, perhaps, it is an accumulation of these complications which has led to the present Bill—of course, I do not know. I would like the Attorney-General to tell me whether there is not, possibly, some way of meeting the difficulties which may of necessity have arisen during those 18 months. I welcome this Measure and congratulate the Government upon it, but I am sure that it has come not a moment too soon. Many cases must have arisen for lack of such a procedure as is now being enacted, and probably these have caused considerable hardship and injustice to those concerned—of course, the physical difficulties in connection with this matter are quite clear. I want to put a question to the Attorney-General, and I do so very carefully, because I know it is no good asking him in loose language to make a Bill of this sort retrospective, and so on. I put this question to him: cannot something be done to see that this Bill is made retrospective in the cases where perfectly proper action has been taken, but, on account of technicalities, the remedy has been refused? I hope my right hon. and learned Friend will consider the point although I can well see the difficulties with which he is faced.

§ Mr. Mathers (Linlithgow)
Will the Attorney-General make clear the position of Scotland in relation to this Bill? There is a reference to Scotland in Clause 3 and there are references throughout the Bill to the United Kingdom, but in the operative Clause the power seems to be vested 1498 entirely in the Lord Chancellor. It is because of this that I would like to give to the fight hon. and learned Gentleman the opportunity to make clear the relationship of Scotland to the Bill. Normally the Lord Chancellor does not have, in usual legal matters, any writ running in Scotland. He has certain authority in respect of the appointment of justices of the peace, but apart from that, in ordinary legal matters, we rely upon our own Scottish legal system except in cases of very high moment in which there can be an appeal to the House of Lords, where the Lord Chancellor has supreme authority in respect of the law.

§ The Attorney-General
I can speak again only by leave of the House. With regard to the remarks of the hon. Member for Linlithgow (Mr. Mathers), I do not think there is a concealed affront to Scotland in this Bill. Clauses 2, 3 and 4 make certain alterations in the general law, and there is no reference to the Lord Chancellor there. It is quite true that under Clause 1 the persons in these camps and places abroad who will be authorised to act as Commissioners for Oaths will be selected and nominated by the Lord Chancellor and under the Lord Chancellor's orders. That is not really impinging upon any question of Scottish law, and it has, of course, been agreed to by the Scottish authorities, and I think probably there are precedents for it. It is simply a question of nominating persons outside this country who can be authorised under this Bill to perform these functions.
As to the remarks of the hon. Member for Southampton (Dr. Russell Thomas), it is, as he said, 18 months since the United States ceased to be the Protecting Power. I do not think that in the gap which this Bill fills up there are likely to be many cases covered by it; but there will be some, and it is important they should be covered, with this exception, that there may be a very considerable number in the Far East. As far as they are concerned, as everybody knows, communication of any kind has been extremely difficult with civilians who have been interned in the Far East, and indeed I think that no really reliable lists have yet come through. Therefore, although no doubt difficulties may well have arisen, as indeed I know they have, with regard to persons in the Far East who had property, and so on, in this Country, and 1499 earlier passage of this Bill would not really have helped the situation, because communications of all kinds have been very difficult.
My hon. Friend asked me whether this Bill could be made in any way retrospective, although I know he did not put it quite in that way. Obviously, that cannot be done. The Bill says that a certain new category of persons can be authorised to take an affidavit or a power of attorney before them. My hon. Friend agrees with that, but he asks about the difficulties that have arisen. In regard to that matter, it is, of course, impossible to make any general statement. If my hon. Friend has any case of difficulty, I shall be glad to look into it. It is not at all an easy problem. The earlier Act was passed to facilitate the swearing of affidavits abroad, and the Services Departments—this does not cover the Far Eastern people—do see that officers and men who are going overseas, and who may have property and affairs here that may require to be dealt with, have the importance of exercising a power of attorney brought to their notice before they go. Thus, one hopes that the people who leave this country will leave behind them someone authorised to deal with their affairs.
With regard to the people in the Far East, I have had one or two cases brought to my attention and there may have been many others which have not been brought to my attention, but on the whole I have no doubt that it is one of those matters in which everybody concerned appreciates the difficulties and does his best to tide over the interim period. The matter is an extremely difficult one to deal with by legislation. It is very difficult to authorise somebody here to deal with somebody else's property, and it may put him in a very difficult and unfair position. All I can say about the difficulties that may have arisen through the absence of a proper authority here is that we are very ready to look into any points that are put to us. Some steps have been taken administratively, or suggestions made, which have helped. Certainly, I will not undertake to say that there is a ready-made simple legislative solution of the problem, but if cases are put to us and there is anything that can be done to help, we shall be very ready to consider it.