DEFENCE REGULATION 18B (EX-DETAINEES) (Hansard, 24 October 1945)

§ Sir John Mellor (Sutton Coldfield)
On 11th October I asked the Home Secretary; If he will establish special procedure which will enable persons formerly detained under Regulation 18b to appear in the High Court with a view to clearing their reputations after public examination of the evidence which occasioned their detention. The Home Secretary replied: No, Sir. As has been frequently pointed out, these persons were not detained for contraventions of the law, and I do not think the examination of their cases by a court of law could produce any conclusion helpful either to the public, or to the individual detained under the Regulation."—[OFFICIAL REPORT, 11th October, 1945; col. 381, Vol. 414.] I do not propose to criticise the Regulation, because I, in common with almost all hon. Members in the last Parliament, acquiesced in it, and must share the responsibility for its being enforced. Neither do I propose to criticise the administration of the Regulation. Indeed, I could have access to no knowledge 2125 which would enable me to do so even if I should so desire. I should also like to make it clear that I am not raising this matter with any reference to a particular case, and, even if I had one in mind, I should be in no position to judge it on its merits, because everything has been wrapt in secrecy.
No one is likely to accuse me of bias in favour of people who may have liked the Germans too much in the past, because I have associated myself with the views of Lord Vansittart about Germany. I have publicly so associated myself and am a member of the council of an organisation over which he presides. The whole of the administration of this Regulation has been wrapt in secrecy. The only obligation laid upon the Home Secretary by the Regulation to disclose anything at all, was in Article 6, which required him to lay monthly before Parliament a return of the total number of persons detained under the Regulation, and of the number of cases in which he had declined to accept the advice of the Advisory Committee. That is all Parliament ever knew. I do not comment adversely upon that. It was accepted by Parliament as an unpleasant, disagreeable, inevitable necessity in time of war.
I feel that that secrecy has lasted long enough. There are British persons who had a distinguished record in the previous war and who, until they were detained under this Regulation, never had their patriotism impugned. That does riot necessarily mean that their detention was wrong. It can be argued that legally they are quite innocent. As the Home Secretary put it in reply to my Question, they were not detained for contraventions of the law. That is all very well in theory, but in practice they have suffered ostracism socially and many of them have been gravely prejudiced, if not ruined, in their businesses. They were detained under the quite arbitrary authority of the Home Secretary. He, I am sure, acted with perfect good faith, but after all, he may have been mistaken. It is a terrible thing that it is possible that a man, completely innocent in every sense of the word, a man of the fullest degree of patriotism, who through some error has been detained, will now have to carry that taint to his grave without any possibility of clearing his character. These people, it is true, have never been con- 2126 victed, but I know that the general public is not inclined to give them the benefit of the doubt.
Therefore, the question arises how this rather horrible position can be set right. In reply to a supplementary question which I asked, the Home Secretary said: This matter was dealt with in a judgment by Lord Findlay after the last war where he pointed out—and these are his words— '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.' "—[OFFICIAL. REPORT, 11th October, 1945; Vol. 414, c. 381.] That passage is not quite in point with what I am saying. It was not after the last war, but during that war, in 1917, when Lord Findlay made those remarks in his judgment in the case of the King v. Halliday. The issue then was whether the order made for the detention of an individual was valid. I recognise the difficulty of attempting to adapt normal procedure to cases of this kind. Therefore, I would wish to recede from my original suggestion that these people should be allowed to go to the High Court. I think now that a more practical suggestion would be that any of these people who desired, who wished to clear their characters, should have the right to demand a public inquiry into their conduct. At that inquiry the Home Office would be required to lay all the evidence and the documents and produce all possible witnesses who could be cross-examined by counsel representing the person who had been detained.
I feel that that really is the least that can be done, and that as a result of such an inquiry a report could be made upon their conduct. The whole proceedings would be held in public, so that the general public would be able to judge in each individual case whether the person concerned had disgraced himself or not.
I would conclude with this suggestion, that the Home Secretary should consult the Lord Chief Justice as to the best form of inquiry. I suggest the Lord Chief Justice because, in the mind of the ordinary Englishman, he is the embodiment of British justice. It may well be that many of those detained are lucky to be alive: it may be that they are guilty of treason and should have been shot, but it may also well be that many of them 2127 were completely innocent and, if a procedure such as I am asking for could establish complete innocence in one case, then it would have been abundantly justified.

§ Mr. Maude (Exeter)
I feel some embarrassment at taking up just two minutes of the time of the House to-night, because I saw the Lord President of the Council here a moment ago, and I think he knows, as at least one other hon. Member opposite knows, that I know something, which is also known to the Lord President of the Council, of the history of certain matters dealt with under this Regulation. It is, of course, impossible to speak about details; the veil of secrecy is—to my mind, perfectly properly—drawn over the vast amount of matter which had to be sifted and considered But I am anxious that His Majesty's Government should be in no way embarrassed by the action of the hon. Member for Sutton Coldfield (Sir J. Mellor) who is obviously acting from the highest of motives, anxious as he clearly is that a person should not go through the rest of his life with a taint upon him, if it should be removed. I beg the House to believe that I, in my turn, in all sincerity, think his suggestions wholly impractical. It would be quite wrong to suppose that any good purpose could be served, in any shape or form, by attempting to have any kind of public inquiry into these painful matters before the High Court, or any other tribunal.

§ The Under-Secretary of State for the Home Department (Mr. Oliver)
The hon. Gentleman at the outset of his observations made it clear that he did not wish to criticise the Regulation, because he, along with many others in the House, was a Member at the time the Regulation was passed and many opportunities were available to criticise it or have it annulled, if Parliament had so wished. He also stated that he had no desire to criticise the administration of the Regulation. Therefore the only question which seems to remain is whether the Home Secretary, in discharging the obligations which Parliament had laid upon him, did so fairly and discreetly. That seems to be the only point remaining for discussion because even if the Home Secretary discharged his obligations reasonably, he 2128 may have been wrong in one or two instances. Some other Home Secretary sitting in his seat at another time might have come to some other conclusions. It is true, even in a court of law where facts are ascertainable by evidence, that judges come to different conclusions.

§ Sir J. Mellor
Surely the Minister will agree that it makes a great deal of difference if those facts have been threshed out in public with witnesses cross-examined and the whole case dealt with publicly instead of secretly by the Home Secretary.

§ Mr. Oliver
Of course, if the facts could be sifted in the manner in which facts can be sifted in a court of law, then of course there is much to be said for the hon. Gentleman's suggestion. But it is not facts alone, it is the inferences which the Home Secretary draws from those facts which are material, and who could be in a better position to judge on these facts than the Home Secretary himself?
I was very glad to hear what the hon. and learned Gentleman for Exeter (Mr. Maude) had to say on this matter. He has an abundance of information which probably no other person in the House possesses, and he made it perfectly clear that it would be very difficult and probably highly improper, to open these cases at this particular time. The Regulations state that the Home Secretary or the Secretary of State "must have reasonable cause to believe." That is the condition imposed on the Home Secretary. If the Home Secretary did exercise his functions reasonably, it would be impossible in 1945 or in 1946 to say what the circumstances were, what facts were present, and what the inferences were at that particular time, which caused the then Home Secretary to act as he did.

§ Sir J. Mellor
Can the Minister say whether the records of the facts and all the documents that were before the Home Secretary of the time, have been preserved? Are they not still available?

§ Mr. Oliver
They may well be; I do not know whether they are or not. The whole point is that the Home Secretary would have certain information at that time on which he acted in a certain manner. He had to exercise his judgment on those matters at that time, and I think, having 2129 regard to events in this country, the judgment which the Home Secretary exercised was a very reasonable one. The hon. Gentleman asked that there should be a public inquiry and that all the documents should be laid, all the evidence given in public, all the facts laid before a public tribunal, and witnesses produced and cross-examined in open court. I do not know whether such a thing is practicable.
It would require those who were the Secretaries when the Orders were made to come to court and suggest what were the reasons upon which they acted. That, to me, seems to be a matter which is outside the bounds of reason.

§ Sir J. Mellor
I was asking that the evidence on which they acted should be brought to the public inquiry, not the Home Secretaries.

§ Mr. Oliver
The position is, however, that the obligation is laid upon the Home Secretary and he must have "reasonable cause to believe." Only the person who was exercising that power at the time, could honestly give any validity and expression to those particular words. It is not something which is documented; it is the reasonable cause for belief in which he acts at the time and cannot put that into a pigeon-hole for future reference. I think the hon. Gentleman (Sir J. Mellor) is trying to open up something which, if I may respectfully suggest, ought to be permitted to rest.
It is impossible, in my view, to prove what a man would or would not have done in hypothetical circumstances. Exhypothesi, these people's loyalty was never put to the test because the circumstances never arose. By reason of the action taken by successive Home Secretaries, the circumstances did not arise—and the thing we have to bear in mind was whether the people who were detained, were people likely to do mischief and not whether they had committed any crime. Political views have never been an offence in this country, and they were not an offence even during the war. Under the Regulations, however, the Home Secretary had to decide whether the people against whom 2130 he made an Order, were people likely to do mischief, and only he, with his knowledge, could come to that conclusion.

§ Sir J. Mellor
Surely the Home Secretary acted on certain ascertained facts. He did not just guess at it. I am only asking that those ascertained facts should be the basis of a public inquiry.

§ Mr. Oliver
I appreciate the point the hon. Gentleman has to establish. There are many facts, no doubt, upon which the Home Secretary acted, and many inferences which he must have drawn from those facts, but it is not a question of the facts alone; it is the inference which he draws from those facts which is material. Therefore, in my respectful submission, the whole suggestion put forward by the hon. Gentleman to-night seems impracticable. An inconclusive inquiry of that sort would moreover be detrimental to the people most worthy of consideration—those in whose cases the Home Secretary thought the risk of disloyalty was least likely. Detention Orders were made against 1,857 persons, 1,816 were detained during the first three years of the war, and of these 1,301, including all but 134 of the British Union cases, had been released by the end of August, 1942. Thus, nearly three-quarters of the detainees have been free more than three years. These people have had an opportunity of settling down to normal life, and it may be that their neighbours and employers do not even know they were detained. If some procedure of inquiry were established, every ex-detainee would have to submit his case to it, or leave it to be assumed that there was something in his record which would not bear investigation. So the hon. Member can appreciate that he would thus be driving people who would wish their past to be buried, to bring it out again; and if they failed to do so, the most sinister construction could be placed on their acquiescence. That would be a tragic circumstance, and one which I hope this House will not permit.