HC Deb 10 February 1947 vol 433 cc1571-84

  1. (1) In matters concerning the discipline and internal administration of the Polish naval detachment mentioned in paragraph (a) of subsection (1) of section one of this Act, and of the Polish forces organised and employed under British command mentioned in paragraph (b) thereof, subsection (1) of section one of the Allied Forces Act, 1940 (which provides that all such powers as are conferred by the law of a foreign Power allied with His Majesty on naval, military and air force courts and authorities of that Power may be exercised in the United Kingdom in relation to members of forces of that power for the time being present therein), shall apply, and shall be deemed to have continued to apply after the said detachment and forces ceased to be recognised by the Government of Poland, as if the said detachment and forces had not ceased to be so recognised.
  2. (2) Any Order in Council made in relation to the said naval detachment or forces under the said Act, or under the Visiting Forces (British Commonwealth) Act, 1933, as applied for purposes of the said Act of 1940, shall also apply, subject to the powers of variation and revocation conferred by section four of the said Act of 1940, and shall be deemed to have continued to apply, as mentioned in the preceding subsection.
  3. (3) For the purposes of the application as aforesaid of subsection (1) of section one of the said Act of 1940, and of the said Orders, the courts and authorities entitled to exercise powers in the matters aforesaid by virtue of that subsection, the powers exercisable therein by them and all other relevant matters shall be deemed to have been, and shall be, determinable by reference to the law of Poland in force immediately before the fifth day of July, nineteen hundred and forty-five.
  4. (4) Notwithstanding anything in the preceding provisions of this section the powers exer- 1572 cisable by virtue thereof shall not include power to impose the punishment of death on any person; and no person shall be imprisoned, or shall be detained for any period longer than three months, pursuant to any sentence of imprisonment or detention awarded in exercise of the said powers except with the consent of the General or Air Officer commanding the Command in which the sentence was passed.— [Mr. Ede.]

Brought up, and read the First time.

Mr. Ede

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

Mr. Paget

Further to the point of Order of my hon. Friend the Member for Hornchurch (Mr. Bing), in my submission, this Clause is not only extraneous to the purpose of the Bill, but is extraneous to the purpose of any Bill which has ever been before this House. The conception of a crime as known by law is an offence against an authority. That is the distinction between a crime and a mere offence like slander, which is an offence against an individual. Here we are dealing with and creating crimes when we have no sovereign authority which is being offended against. The second difficulty which arises from that matter is this: Where there is a crime, the trial is between parties, and where we have a criminal trial it is a trial between the sovereign authority—in this country the King—on the one hand, and the accused on the other. Here you are creating trials without a party. Lastly, there is this point that every crime, being an offence against a sovereign authority—

The Chairman

Perhaps the hon. Member will get to his point of Order. He cannot indulge in these discussions.

Mr. Paget

My point of Order, with respect, Major Milner, is to show that the purposes of this Clause are right outside the purposes of the Bill, and I do that by showing how the purposes arise. Since a crime is an offence against sovereign authority it is inherent in crime that the sovereign authority is in a position to forgive. The prerogative of mercy is inherent in a crime. Here, for the first time in our legal history, quite apart from the purposes of this Bill, we are creating an offence which is not subject to any prerogative of mercy.

The Chairman

The hon. Member will forgive me for saying so, but that is quite outside the point. The simple question is that put by the hon. Member for Hornchurch (Mr. Bing), that this new Clause is outside the scope of the Bill. I have considered that question. I have also considered the precedent which the hon. Gentleman quoted. I am satisfied that the new Clause is within the scope of the Bill. The analogy drawn was not an accurate one, because the Deceased Wife's Sister Bill and the other Bill mentioned, both covered a very narrow point. This Bill covers a wide range, and the new Clause is within the scope of the Bill, even if it is not within the Title of the Bill. The right hon. Gentleman is taking steps to deal with this last point in the last Amendment on the Order Paper. In my view, therefore, the new Clause is within the scope of the Bill.

Mr. Pritt

With respect, Major Milner, you are giving your Ruling before you have heard the arguments of the hon. Member for Northampton (Mr. Paget). He was developing his argument, I thought, clearly and very shortly. Certainly he had not finished developing a further argument to show that this new Clause could not be within the scope of the Bill. He was showing the very extraordinary nature and the quite unprecedented character of the Bill. Surely it is impossible for the Chairman to rule that something is within the Bill, until the argument has been heard showing exactly what it is that might prove it to be without the Bill. I humbly submit, Major Milner, that you should hear the argument on that before expressing an opinion.

The Chairman

It the hon. Member tot Northampton (Mr. Paget) wishes to develop any further relevant argument I am quite willing to hear him. But if he will forgive my saying so, the argument which both he and the hon. and learned Member for North Hammersmith (Mr. Pritt) have advanced, that this, subject matter is unprecedented, does not affect the question at all. Many things are done in this House which have not been done before. The simple question is whether the new Clause is within the scope of the Bill. I have considered that, and I had the advantage of a written communication from the hon. Member for Hornchurch (Mr. Bing), who was good enough to let me have it in good time, and I must ask the Committee to accept my Ruling.

Mr. Pritt

Although you have received an argument from the hon. Member for Hornchurch, Major Milner, and have considered it, there was going forward when you interrupted him, an equally good and an equally cogent argument by the hon. Member for Northampton. It is true that he said it was unprecedented, but some of us say things which are not the whole argument. That he was going on to say other things was quite clear. It is for you to say, Major Milner, whether those arguments are good or bad, but I respectfully submit that you should not say they are bad, until you have heard them.

1.15 a.m.

The Chairman

The hon. and learned Member for North Hammersmith (Mr. Pritt) has made an observation which is ill-founded. He has put forward, as did the hon. Member for Ndrthampton (Mr. Paget) the argument that the new Clause was unprecedented. This was no ground whatever for ruling the new Clause out of Order, but if the hon. Member for Northampton has any fresh argument, I will hear it.

Mr. Paget

This is not a Bill to alter the Constitution of this country. The added Clause fundamentally alters the Constitution of this country, by introducing a new conception of crime, a new conception of trial, and by introducing an offence which is not to be subject to the prerogative of mercy. That prerogative was a subject considered in detail by this House during the Stuart period. But we are doing here, just by a whim during a Committee stage, the very thing which, after tremendous constitutional Debates, this House decided it had no power to do in the Stuart period.

Mr. Mikardo (Reading)

I am not an authority on the Rules of Order, and I cannot speak, therefore, with the authority of the hon. Gentlemen who have spoken previously. But, with respect, it would seem improper to introduce on the Committee stage of a Bill a new Clause, the terms of which have been held, by precedent, on previous occasions to be casus belli. I am quite sure that such a serious step as introducing a casus belli into a Bill ought not to he taken on a Committee stage. The proposals set out in this Clause seek to recognise the laws of another country which existed before a certain date in the past. That is precisely the procedure which was carried out by the court of the French kings in the first half of the eighteenth century, when they recognised, in so far as it concerned the king, the laws of Great Britain only so far as these laws were passed before 1689.

The Chairman

The hon. Member is not speaking on a matter of relevancy—he is speaking on the merits. May I sug gest that the Home Secretary should make a statement on the point of Order?

Mr. Gallacher

On a point of Order

The Chairman

I have asked the Home Secretary to speak.

Mr. Ede

I did make the promise al an earlier stage that, when we came to this Clause, I would make a statement. May I first refer to the question on which you, Major Milner, have ruled, namely, whether the Clause is within the scope of the Bill As has been said, this is an unprecedented situation, and in view of the misgivings which have been expressed, it was not my intention to proceed with the new Clause at this stage of the Bill.

Mr. James Stuart (Moray and Nairn)

Then why move it?

Mr. Ede

Unless I moved it, I could not make a statement on it. I should have thought that even a Tory Chief Whip would have known that. Perhaps I may be allowed to read to the House the form of words that I prefer, and which I intended to move on the Report stage, so that between now and then I can discuss the matter with all those who are concerned about this unprecedented situation. It is an unprecedented situation to bring into the British Army a unit of this composition, and at the same time to preserve the civil liberties of all persons within the Realm, whether they are in the Army or not. I desire to put these words on record before asking leave to withdraw the Motion. I think that they are a better form of words to secure the object we have in view, the ability to maintain discipline inside an organisation of Poles who have not agreed to come into the Resettlement Corps. The proposed new words are: (1) The Polish forces mentioned in paragraphs (a) and(b) of Subsecion (1) of Section one of this Act shall be under the command of a person of British nationality appointed by the Secretary of State, being a person appearing to him to have a good know- ledge, and to be experienced in the administration, of British military law. (2) It shall be lawful for the person for the time being having command as aforesaid of the said forces to exercise within the United Kingdom, as regards matters concerning discipline and internal administration, in relation to those forces all such powers as were conferred by the law of Poland in force on the first day of January, nineteen hundred and forty-five, on military, air force and naval courts and authorities, and to delegate either generally or in particular cases, to authorities, commanders or other officers of those forces such of the powers exercisable by him by virtue of this Subsection as may appear to him to be requisite to be so delegated for securing the maintenance of discipline and efficiency of administration: Provided that the powers exercisable "—

Mr. Bowles (Nuneaton)

Does this really arise on the point of Order?

The Chairman

The right hon. Gentleman was reading the new words which he proposes to move on the Report stage, before asking leave to withdraw his Motion. Is it the wish of the Committee that the right hon. Gentleman should, if he is willing, discuss his new proposal at some later stage in the Bill?

Mr. Driberg (Maldon)

Further to the point of Order. With great respect, Major Milner, at the beginning of the Home Secretary's speech I understood you to say that you were appealing to him to speak to the point of Order, to indicate why the new Clause on the Order Paper was in Order. It seemed to me that his departure from that point has rather altered the circumstances.

The Chairman

That was so But because I thought it was for the general convenience of the Committee, and in view of the turn which matters had taken—of which I had no previous notice—I permitted the Home Secretary to explain what he was proposing to do, by proceeding with his statement. This seemed to me to offer a way out of the difficulty.

Mr. Gallacher

On a point of Order. I am certain, Major Milner, that you put to the House the Question that Clause 12 stand part of the Bill. I called "Aye," and I do not know how many other hon. Members did the same. Once you put Clause 12, the Committee stage of the Bill is finished, and I do not consider that any new Clause now is within the scope of the Bill. Am I to understand that after you have finished the Bill it is possible to take other Clauses?

The Chairman

The hon. Member must forgive me, but it is not only permissible but, indeed, the correct procedure, after the Clauses of a Bill have been dealt with, to consider new Clauses and the Schedules The hon. Member is quite in error.

Mr. Stokes

Can we go on with them when they are out of Order?

The Chairman

I suggest that the Home Secretary be permitted to finish his statement.

Mr. Stokes

He is out of Order.

Mr. Ede

With great respect, Major Milner, I should perhaps point out that I did in fact give notice to your Deputy who was in the Chair at an earlier stage of the proceedings that I was intending to adopt the course which I have followed. I am only anxious to get this Clause into print so that I can discuss it with hon. Members who may desire to do so. I was reading a proviso and, if I may, I will resume where I left off. It continues: Provided that the powers exercisable by virtue of this subsection shall not include power to impose the punishment of death on any person, and no person shall be imprisoned, or shall be held in detention for any period longer than three months, pursuant to any sentence of imprisonment or detention awarded in exercise of any of the said powers which may have been delegated as aforesaid except with the consent of the person for the time being having command as aforesaid. (3)His Majesty may by Order in Council provide for the application to any of the said forces, subject to such adaptations, modifications and exceptions as may be provided by the Order, of subsections (2) to (4) of section one, section two and subsections (2) and (4) of section three of the Visiting Forces (British Commonwealth) Act, 1933, as amended by or under any enactments whether passed before or after this Act. Any Order in Council made under this subsection may be varied or revoked by a subsequent Order in Council. (4)Nothing in this section shall affect the jurisdiction of any civil court of the United Kingdom to try a member of any of the said forces for any act or omission constituting an offence against the law of the United Kingdom: Provided that— (a) if a person sentenced by an authority or person exercising jurisdiction by virtue of this section to punishment for an offence is afterwards tried by any civil court of the United Kingdom in respect of any act or omission which constitutes an offence, the civil court shall, in awarding punishment in respect of that act or omission, have regard to any punishment imposed on him by the said sentence; and (b) no authority or person shall have jurisdiction by virtue of this section to try any person for any act or omission constituting an offence for which he has been acquitted or convicted by any civil court in the United Kingdom.

1.30 a.m.

Mr. Law

If I may say so with great respect, the Home Secretary has achieved a remarkable treble. He has confused the Committee, as far as I can understand it, he has confused you, Major Milner, and he has completely confused himself.

Mr. Stokes

On a point of Order. What is before the Committee? Could you, Major Milner, make it quite clear?

The Chairman

I understand that the point of Order has been dropped. The Home Secretary has formally moved the Second Reading of the new Clause and he later proposes to withdraw it. I would say this to the Home Secretary with all respect, that it would have been more convenient if he had, in the first instance, not moved the new Clause standing in his name but contented himself by handing in his revised version to the Table, when it could have been printed on the Order Paper tomorrow morning.

Mr. Stokes

What is the Motion, now?

The Chairman

The Motion is that the new Clause be read a Second time.

Mr. Law

On a point of Order. Surely the position is quite a simple one. The Home Secretary made a statement to the Committee, and I was commenting on that statement. I hope I shall be allowed to continue my comments.

The Chairman

I hope that the right hon. Gentleman will not do so at length, having regard to the statement that the right hon. Gentleman the Home Secretary was going to make.

Mr. Stokes

We did not hear it down here.

The Chairman

I understand the right hon. Gentleman the Home Secretary will now put in a revised version to be printed on the Order Paper, and later there will be an opportunity for a Debate on it.

Mr. Law

I quite agree it would be impossible to debate the merits of that rigmarole which the Home Secretary read out, because nobody could possibly understand those comments of the Home Secretary.

Mr. Stokes

On a point of Order. Will you, Major Milner, make it clear to those of us below the Gangway what is the Motion before the Committee?

The Chairman

The Motion before the Committee is "That the Clause be read a Second time."

Mr. Stokes

But, Major Milner, you have ruled the new Clause out of Order.

The Chairman

On the contrary, I distinctly ruled in reply to the hon. Member for Hornchurch (Mr. Bing) and the hon. Member for Northampton (Mr. Paget) that it was in Order and that is precisely what is before the Committee.

Mr. Stokes

The Home Secretary has withdrawn the Clause and has tried to insert a new one which nobody has heard.

The Chairman

On the contrary, it has not yet been withdrawn, and the right hon. Gentleman the Member for South Kensington (Mr. Law) was speaking on the Motion, "That the Clause be read a Second time"

Mr. Gallacher

How can we discuss whether this Clause should get a Second Reading when we have not yet decided that the original Clause should be withdrawn? You, Major Milner, have told us that the Home Secretaary has asked permission to withdraw it.

The Chairman

I think hon. Members can leave that to me. What we are discussing at the moment is the Motion, "That the Clause be read a Second time." I understand that, at some appropriate stage, later on, the Home Secretary will ask leave to withdraw it.

Mr. Ronald Mackay (Hull, North-West)

May I move, "That the Chairman do report Progress, and ask leave to sit again? Such a Motion, if accepted, will give the Government time to consider this whole matter.

The Chairman

I am afraid that I can not accept that Motion.

Mr. Warbey

Major Milner, you just said that you had heard the point of Order and had ruled that the new Clause is not out side the scope of the Bill. I understood that that was the point raised by the hon. Member for Hornchurch (Mr. Bing) Having given that Ruling you did, I understand, go on to hear further pleas from a different point of view regarding this Clause. There was a second point of Order raised by the hon Member for Northampton (Mr. Paget) that the new Clause was ultra vires on the Committee stage, in view of the fact that it involved a new precedent in constitutional law. I understood you had not vet given your Ruling on that point.

The Chairman

I thought that I had given it.. I will give it now. In my view, the new Clause does come within the scope of the Bill, and I do not accept the argument advanced by the hon. Member for Northampton (Mr. Paget)

Mr. Stokes

May we hear what the position is? As I understand, the Home Secretary has withdrawn the Clause. [HON. MEMBERS: "No."] He said so. If he has withdrawn it, how can there be a point of Order on the new Clause?

The Chairman

He did not withdraw it.

Mr. Stokes

What is the position now?. Is the new Clause not withdrawn?

The Chairman

I have already told hon Members what is the position. I will go over it once again. The Home Secretary moved at my request the Second Reading of the new Clause on the Paper. The hon. Member for Hornchurch (Mr. Bing) and the hon. Member for Northampton (Mr. Paget) raised a point of Order and that point of Order I disposed of. The Motion for the Second Reading of the new Clause is still before the Committee. At a later stage, the Home Secretary proposes to withdraw the new Clause, but hon. Members are at present entitled to discuss it.

Mr. Eric Fletcher

On a point of Order. Surely the position is that you, Major Milner, were considering further arguments from the hon. Member for Northampton (Mr. Paget) as to whether or not the proposed new Clause was within the scope of the Bill. Then at your suggestion, the Home Secretary spoke on that point of Order, and indicated a certain course that he would be prepared to take, which was inaudible down here. During that discussion, hon. Members sitting here, were waiting to hear what was going to be proposed by the Home Secretary in order to have an opportunity of advancing further arguments before you gave any Ruling on whether the proposed new Clause which was going to be moved, was or was not within the scope of the Bill. May I respectfully submit that it is in the interests of all that we should have some clarity in the Committee stage of these proceedings. There is a matter of constitutional importance involved in this, because this House gave a Second Reading to this Bill in a certain form. On the Committee stage, we find on the Order Paper a proposed new Clause which we now under stand is not to be moved.

Mr. Law

It has been moved.

Mr. Fletcher

It has either not been moved, or it has been moved and withdrawn.

The Chairman

No.

Mr. Fletcher

It is going to be moved again. It does seem that there is a very important question of principle involved in this. The House gave a Second Reading to this Bill after a full day's Debate, and it is quite obvious from arguments advanced during the last few minutes that several hon. Members who supported it in its original form would not have done so if, at the outset, it had contained this proposed new Clause.

The Chairman

The hon. Member must forgive me, but the matter on which he is speaking is in no way connected with the proposed new Clause, which the Home Secretary is to put on some future Order Paper. The House on the Report stage presumably—

Mr. Stokes

Which Clause?

The Chairman

The Clause which will be proposed when the present new Clause is withdrawn, and which will be put on the Order Paper for future discussion on the Report stage. I do not express any opinion on that proposed new Clause—it is not at the moment before the House. It will come before Mr. Speaker, presumably on the Report stage, and it will be for him to decide whether that new Clause, when it is put on the Order Paper and comes up on the Report stage, is in Order or not.

Several hon. Members

rose—

The Chairman

I must ask hon. Members to restrain their exuberance. The matter is perfectly clear. It is not proposed, I understand, to proceed with the new Clause at present on the Order Paper. The matter is perfectly open for the House to decide upon any future new Clause that the Home Secretary may put down, and is in no way prejudiced.

Mr. Stokes

Further to that point, may I ask whether any hon. Member of this Committee will now be in Order in discussing the proposed hew Clause which was not on the Order Paper and which nobody except a few privileged people above the Gangway has heard?

The Chairman

They will not be in Order. I myself have not a copy of it, nor has it been put on the Table, and hence it cannot be discussed.

Mr. Law

Perhaps. I may now address myself to the Motion which I understand the Home Secretary has moved namely—

Mr. Gallacher

On a point of Order—

The Chairman

No, I must ask the hon. Member to resume his seat. The hon. Member has raised a number of quite false points of Order, and I must ask him to resume his seat. We must make progress. I am the servant of the Committee, and the Committee must make progress.

Hon. Members

Hear, hear.

Mr. Gallacher

But, Major Milner, on a point of Order. This new Clause has been put down for Second Reading. The Second Reading must be before the House, and cannot be discussed in Committee. That is a fact.

The Chairman

Mr. Law.

Mr. Law

I will now try once again to address myself to the new Clause which is on the Paper, and to the speech which the Home Secretary made in moving that this Clause on the Paper be now read a Second time. The only argument that he produced relevant to this Clause which he put on the Paper was that it was an extremely bad Clause and that he proposed to withdraw it. But I would like to offer the Home Secretary these reflections on his proceedings here this evening. About one and a half hours ago—

Mr. Stokes

Is that in Order on this new Clause?

Mr. Law

—I moved to report Progress, and the Home Secretary refused to accept the Motion on the ground that when we came to this new Clause he would make a statement so clear that it would solve all our troubles—

The Chairman

The right hon. Gentleman's remarks do not seem relevant to the Question whether the new Clause on the Order Paper should be read a Second time or not. That is the matter before the Committee.

Mr. Ede

I regret very much, Major Milner, that the Committee should have been put to any inconvenience through the course which I followed, and I sincerely apologise to all hon. Members on both sides for any inconvenience that has been so caused. I ask them to believe that I did it with the intention of trying to help the progress of the Bill, and to facilitate the progress of this business. But, like many other good intentions of myself and other people, that miscarried. I therefore beg to ask leave of the Committee to withdraw the new Clause on the Order Paper.

The Chairman

The Committee are glad to have that expression of regret, and will no doubt accept it in the spirit in which it has been offered. Is it the pleasure of the Committee that the new Clause be withdrawn?

Motion and Clause, by leave, withdrawn.

Schedule agreed to.

Bill reported, with Amendments; as amended, to be considered upon Monday next, and to be printed. [Bill 40.]

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