§ (1) The Polish forces mentioned in paragraphs (a) and (b) of subsection (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 knowledge, and to be experienced in the administration, of British military law, who shall be called the Administrator of Polish forces under British command and is in this section referred to as "the Administrator."
§ (2) Members of the said forces shall be under obligation to observe, in matters concerning 346 their discipline and internal administration, the rules in force as to those matters under the law of Poland on the first day of January, nineteen hundred and forty-five, and a member of any of the said forces who contravenes or fails to observe any of the said rules in relation to which a punishment is thereby prescribed shall be guilty of an offence against this section and shall, on conviction thereof in accordance with the provisions of this section, be liable, subject to the provisions of this section, to the punishment prescribed by those rules:
§ Provided that no person shall be liable by virtue of this section to the punishment of death.
§ (3) Jurisdiction to try members of the said forces alleged to be guilty of such contravention or failure as aforesaid, and to award sentence on conviction thereof, shall be vested in the Administrator and shall be exercisable by him in accordance with such procedure and in such manner as he may determine, and he shall have power for the purposes of his jurisdiction under this subsection to administer oaths.
§ (4) The Administrator may exercise in relation to members of the said forces all such powers as are conferred by the said rules on naval, military and air force courts and authorities.
§ (5)The Administrator may delegate, generally or in particular cases, to such person or persons as he may think fit, power to do things that are within his jurisdiction or power under the two last preceding subsections, and any such delegation may limit the exercise of a jurisdiction or power so delegated as respects the measure of punishment that may be awarded thereunder or in any other respect, or make it subject to confirmation or review by another such person or persons or by himself or to any other conditions, and may include power to sub-delegate:
§ Provided that 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 jurisdiction or power delegated as aforesaid unless the sentence is confirmed by the Administrator.
§ (6) His Majesty may by Order in Council provide for the application to the said forces, subject to such adaptations, modifications and exceptions as may be provided by the Order, of subsections (2) to (5) of Section one, Section two and subsections (2) and (4) of Section three of the Visiting Forces (British Commonwealth) Act, 1933, and any Order made under this subsection may be varied or revoked by a subsequent Order in Council.
§ (7) In the case of any act or omission constituting an offence against this section which also constitutes an offence apart from this section, nothing in the preceding provisions of this section or done thereunder shall affect any jurisdiction to try a member of the said forces for the offence apart from this section in respect of such an act or omission, and when a member of the said forces has been convicted or acquitted on such trial there shall 347 be no jurisdiction to try him under this section in respect of the same act or omission.
§ (8) As respects any period between the first day of January, nineteen hundred and forty-five, and the passing of this Act, the powers conferred by subsection (1) of Section one of the Allied Forces Act, 1940, shall be deemed to have been exercisable in relation to the said forces by reference to the law of Poland in force on that day and as if the said forces had not ceased to be recognised by the Government of Poland, and any Order in Council made under or by virtue of that Act shall be deemed to have had effect accordingly.—[Mr. Ede.]
§ Brought up, and read the First Time.
§ Mr. Paget (Northampton)
On a point of Order. I apologise in advance if this is a somewhat substantial point of Order, because it raises a question of considerable constitutional importance. My point of Order is that this new Clause is out of Order as being outside the scope of this Bill. To put the matter in slightly different words, it is out of Order because it raises principles to which this House has not given a Second Reading. The principles of this Bill are that it is to provide machinery for absorbing the Polish forces into our Constitution and to make our Ministers responsible for them. The first seven Subsections of the new Clause have that same principle. They are there for the same purpose—to bring the Poles within the rule of our law and to make the Minister responsible for them. I do not take any objection to the first seven Subsections. Indeed, I have another proposed new Clause on the Order Paper which is designed to preserve the principles of those seven Subsections, should my submission on this point of Order be successful. My criticism is directed to Subsection (8). I say that that raises a new principle, involving that which is fundamental in our Constitution and our principles of civil liberty.
That Subsection is, I submit, contrary to the fundamental principle that no man within the jurisdiction of our law, whether he be an alien negro slave, whether he be an Irish rebel, bearing French arms, shall be deprived of his liberty save by due process of law, and that no man shall be punished save for a breach of the known laws of the land. That is the principle here involved.
The situation at the present moment is this. A number of people within our jurisdiction have been, and are being, unlawfully deprived of their liberty. 348 That situation has arisen by reason of the fact that the Visiting Forces Act provided that the powers there conferred Upon the authorities of armed forces in this country, were only such powers as were conferred upon them by the law of their country. With regard to Poland, when the visiting army of Poland ceased to be recognised by the Government of Poland, there was no power at all, and hence, from that date, people in those forces have been imprisoned for things which were not crimes, by courts which were not courts and are serving purely illegal sentences. The question was decided by the courts on an application for a writ of habeas corpus by Eugenius Zytomerski. When the matter came up, the writ was granted, and then the matter came before the High Court. I am glad to see that the learned Attorney-General is in his place; because in this case a man was imprisoned without any justification in law at all. [Interruption.] What happened was that—
§ Mr. Deputy-Speaker (Major Milner)
The hon. Gentleman is now arguing the question on the merits. I understood that he was raising a point of Order.
§ Mr. Paget
I am raising a point of Order, but I am afraid I was diverted. These people are at present unlawfully detained. What are the points of principle raised by this new Clause—points of principle to which this House has not given a Second Reading? The first point of principle is that the new Clause is an act of indemnity. It forgives those who have committed wrongs against the civil liberties of individuals within our jurisdiction. I do not say whether it is right or wrong in these circumstances. It may be right, but it raises an important principle. It is a serious matter. Not only are we forgiving wrong-doing, but we are saying to people who have been unlawfully deprived of their civil liberties that they are to be denied a remedy which the courts would give them. It may be right to do that, but it is a matter of principle that is wholly extraneous to this Bill, and one to which this House has not given a Second Reading.
The second principle which this new Clause raises is the principle of attainder. This Bill provides that people who are at present in prison for no offences against the law, because they have been sent there by officers who have no authority under 349 the law and by courts which are not courts under the law, these people who are today wrongfully deprived of their liberty, shall stay in prison. That is attainder, and it has the further effect that, since they are to stay in prison by Act of Parliament, they can only be let out by Act of Parliament. Nobody can review these sentences. Under this Bill, the Polish authorities cease to exist. The new administrator does not take over. It may be right, or it may be wrong. I do not know, but I do say that it involves a new and important principle which does not arise under the Bill.
Finally, the third new principle raised under the Bill is the principle of indulgence. What this new Clause says, in effect, is not that a man shall be forgiven for the sins he has committed up to date, but that he shall be forgiven for the sins he is going to commit up to the time that this Bill receives the Royal Assent. This is the first time on which this Parliament has ever been asked to pass an indulgence for invasions of civil liberty yet to be committed. That may be right, or it may be wrong, but, in my submission, it raises a principle. Indeed, it is the principle upon which Martin Luther challenged the Church of Rome, the princple of indulgence. It may be that all the 97 reasons against that principle were bad reasons; I do not know. This House does not know, because this House has not considered this principle on Second Reading, and it is a principle wholly extraneous to this Bill.
This is a Clause of hidden pregnancy. I say that it should not be allowed to proceed to a concealed birth. It may be necessary that these things should be done, but, in my view, they should be done in a proper, constitutional manner, and the principles which they involve should be considered by this House on Second Reading. This House has always been jealous of the principle of civil liberty, and it is a principle which we should guard. There may be occasions on which we ought to depart from it, but it should only be departed from after due consideration, and not in a hole and corner manner such as by a Clause introduced for the first time on the Report stage.
§ Mr. Deputy-Speaker
I understand that the hon. Member has been good enough to submit his grounds to Mr. Speaker, and Mr. Speaker has given his Ruling as follows. He says:
350 "The question I am asked to decide, in so far as it is a question of Order, is whether Subsection (8) of the new Clause to be moved by the Home Secretary is so alien to the purposes of the Bill as to put the Clause itself outside the scope of the Bill. The purposes of the Bill are set out in detail in the long Title. There are some half dozen. The purpose of the proposed new Clause is not one of these, and I must have regard to the scope of the Bill. I find that the scope is of such a miscellaneous character that I cannot hold that an additional provision for the internal discipline of certain Polish Forces is alien to it, though, of course, it necessitates an addition to the Title. I understand that the hon. Member does not dispute that the new Clause, apart from Subsection (8), is within the scope of the Bill. The grounds on which he objects to the Subsection are really no more than arguments on the merits. It is true that the Clause has retrospective effect, but that does not make its inclusion in the Bill out of Order."
Mr. Speaker says that these and other objections should be raised on the Clause. I see that the hon. Member has an Amendment on the Paper, which would give him an opportunity of doing so.
§ Mr. Mikardo (Reading)
Further to that point of Order. I understood from the Ruling which you have just been good enough to read to the House, Major Milner, that it is Mr. Speaker's view that the Clause would demand an addition to the Title of the Bill. Does this not mean that so long as the Title remains as it is at present, and in anticipation of the passage of any Amendment altering the Title, it must, therefore, be out of Order to consider a Clause which is out of Order so long as the Title remains as it is?
§ Mr. Deputy-Speaker
No, there is an Amendment down which, in due course, if the- House approves, will amend the Title.
§ 9.30 p.m.
§ Mr. Mikardo
With great respect, may I submit that, supposing it came about that when we reached the Amendment seeking to alter the Title, this Amendment were defeated, clearly the Clause which we should then have passed would be out of Order, because the Title would then not fit it?
§ Mr. Deputy-Speaker
One must presume that the House acts consistently and that, having made one Amendment, it makes another appropriate Amendment to deal with that Amendment.
§ Mr. Leslie Hale (Oldham)
I rise for the purpose of submitting two points of Order. The first one, which I submit with great respect, is whether it is in the power of the Chair to give a Ruling on a point of Order submitted to the Chair outside the House and ruled in advance of the Debate or of the hearing of the argument submitted in this House. The second point of Order which I desire to raise on this new Clause, which is quite different from the one put by my hon. Friend the Member for Northampton (Mr. Paget), is that this new Clause seeks to impose or provide for the administration in this territory of a wholly new system of law which is not understood by any Member of this House; which, so far as I am aware, is in a language which is not known by any Member of this House; which is not defined in the Clause; which is described as the law of Poland on 1st January, 1945; which may be the law of Poland or the law of Germany or the law of Russia, according to whether one accepts the rule of de facto or de jure law; which must be interpreted by some tribunal; which can in this country only be determined by one tribunal which, I submit, must be the Royal Courts of Justice of this land, and which, under the terms of this Clause, will be called upon to make a decision upon Polish law which they do not understand, to give a Ruling on the date when Polish law ceases to define to whom it applies and in respect of whom it is to be administered, to decide whether an appeal lies under the provisions of this Measure to the courts of Germany or Poland or to the courts of this country—
§ Mr. Speaker
That is a very excellent argument against Subsection (8), but it is not a point of Order.
§ Mr. Hale
May I, with respect, add one sentence? The point I am trying to put is that for the first time in a 100 years, this Clause is bringing the Parliament of this country into conflict with the judiciary in a way in which the judiciary would have a right to say that Parliament, for 352 the first time in its sovereign history, has attempted to pass an Act which it is not entitled to pass.
§ Mr. Speaker
That is a good argument, but it is not a point of Order. That argument can be made when the Amendment is moved in due course.
§ Mr. Pritt (Hammersmith, North)
On a point of Order. I would venture to put a point very shortly, following upon what my hon. Friend the Member for Oldham (Mr. Hale) has said. There must be a difference between what can be argued against the merits of a Clause and what may be submitted as being out of Order. Surely, it is clear that Subsection (8) does attempt to introduce into the law of this country, on Report stage, for certain purposes, and in application to certain persons, the law of another country. There is nothing in the Title or in the proposed Amendment to the Title to suggest that this is an Act for the purpose of introducing, in application to certain persons, the law of a foreign State. I submit for that reason alone that this part of the Clause must be out of Order.
§ Mr. Speaker
All I can say is that I have looked very carefully into this question, because I was courteously apprised of the matter beforehand, and I am advised that this is in Order so far as Parliament is concerned.
§ Mr. Sydney Silverman (Nelson and Colne)
Further to that point of Order, Mr. Speaker. I rather understood that what my hon. Friend the Member for Oldham (Mr. Hale) was saying was this. He gave a list of new principles which he says are in the Clause. I do not know if they are in the Clause or not. No doubt, they would be equally arguable, if the Clause were in Order, on the Amendment which is on the Paper with regard to that Subsection. I rather thought the argument he was putting to you, Mr. Speaker, was that these matters in the proposed new Clause are, of themselves, so alien to the purpose of the Bill, and so alien to the purpose of this proposed new Clause as defined in the margin, that they cannot possibly be within the scope of the Bill to which the House has given a Second Reading. It would seem that if the proposed new Clause does contain the matters to which 353 he referred they are quite outside those matters which the House considered when it gave a Second Reading to the Bill.
§ Mr. Speaker
I think we can discuss all those matters when the Amendment to which I have referred is moved. I should suggest it is a legal question, if I might venture an opinion. After all, this Bill has to go to another place, where there are legal authorities who will, having now seen the red light, no doubt look into the matter in advance. I do not suppose they will hesitate to take action if it is legally wrong.
§ The Secretary of State for the Home Department (Mr. Ede)
I beg to move, "That the Clause be read a Second time."
I believe this proposed new Clause is unprecedented in the history of this House, because we have to deal with a situation which is unprecedented in English history. But one of the great advantages of this House is that, when no precedents exist to deal with a practical situation, the House creates a precedent to solve the situation that confronts it, and to give guidance to future generations should they be faced with similar difficulties. Inasmuch as this is an unprecedented situation, this proposed new Clause has given me, as the Minister responsible for submitting it to the House, the gravest anxiety; and this is the third edition of the Clause which has appeared on the Order Paper. I ought, at this stage, to express my thanks to the hon. Member for Northampton (Mr. Paget) for the way in which, since the Committee stage of the Bill, he has assisted me in the drafting of the first seven Subsections. I say that because it is due to him that that should be said. I ought also make it clear that from the first he has expressed the views with regard to Subsection (8) which he briefly expressed this evening. I have heard them at greater length.
What is the situation with which we have to deal? We had an ally for whom we went to war; the invasion of whose territory was the cause which brought us into the war. There have been changes in the Government of that particular State. Certain nationals of that State, some of whom enlisted direct into the Polish Army while it was still on Polish territory, and others of whom joined the Polish Forces at subsequent stages, have, 354 in the end, been left, in conjunction with our Forces, in various parts of the world after the Government of Poland to which they first owed allegiance had passed away. I am trying to state, as uncontroversially as I can, what I know is very controversial history, and trying to state merely the facts as they seem to one who has never owed allegiance to any Government of Poland.
There was a complicated stage at which there were two Polish Governments, one in Warsaw and one in London, with both of which, as I understand it, at one stage we were, at any rate, in connection. Then a stage arrived at which this country decided no longer to recognise the Polish Government in London; and the only Polish Government which we recognised was the Polish Government in Warsaw.
Some of the Poles who were then serving with our Forces did not find it possible to give their allegiance to the Government in Warsaw, and they had no desire to return to Poland. They had fought in alliance with this country, and they were, at the time to which I am now alluding, actually under the command, the final command, of British officers, although they had their own Polish units. We are faced with the difficulty that we have to make arrangements, in this territory and elsewhere in the world, for the daily sustenance and discipline of these men; not merely these men, but of certain people who, at one stage or another, have become connected with them. The Government are confronted with the difficulty that exists with regard to the position of these people in this country. As far as I know, legally, they are at the moment a more or less voluntary association of aliens who have been admitted into this country. They are in this country, without having gone through the normal processes of the immigration law. There is no invasion of this country, that I can trace in its history, that has any relationship to the cicumstances that now exist.
Therefore, we have, as a practical proposition, to discover some way in which we can, first, maintain these people, and, secondly, arrange for their future existence in this country or elsewhere. The main Clauses of this Bill deal with two groups of the people who are comparatively easy to deal with. We have offered to every one of the persons who are dealt with by the main Clauses of the Bill two alterna- 355 tives, either that they shall return to Poland—and some 60,000 have accepted that alternative—or that they shall join a body, which is under military discipline in this country, although it is a noncombatant unit, known as the Polish Resettlement Corps, in which they are given training. The classes are held in the English language, and where these people prove capable of it, they are given training; they are even sent to certain training schools for particular industries, in the hope that some of them may be absorbed into the labour force of this country; others have expressed the wish to emigrate from this country, when trained, to foreign countries. The people who accept one or other of these two alternatives are dealt with in the Clauses of the Bill that we have already considered.
We are faced now with two other groups of people. There are some people to whom those two alternatives were offered as long ago, I understand, as last September—and I believe, in a few cases, even earlier. We have said, "Do you desire to go back to Poland, or will you join the Polish Resettlement Corps?" They say in effect, "We make neither choice: we are doing very nicely, the British rations are very good, and circumstances in the camps are not too bad, and we are quite willing to stay here. We thank you very much, and we hope you will not unduly press the question without giving us very long previous notice of it." We have to deal with those people who, in return for very generous treatment, are trying to be tough with us. My experience when I was under military discipline was that if anybody wanted to be tough with me the best thing, if he was subordinate to me in rank, was to be tough with him.
I do not think the people whom I have just described will excite any very great amount of sympathy anywhere in this country. They have had two quite reasonable alternatives submitted to them and, if they do not accept one or the other, very well; I think the proposal that was read out on a previous occasion by the hon. Member for Cheltenham (Mr. Lipson), that the third alternative should be to take them back to the continent of Europe, make them a present of 400 marks and wish them the best of luck as they depart from our responsibility, is 356 a not unfitting way to bring their association with us to an end, much as I regret that that should be the case with regard to any particular individul.
We have also to realise that we have no disciplinary powers over those people other than those which I possess as Home Secretary to deport an alien who, for one reason or another, I think is better out of the country than in it, and I have some difficulty in dealing with them between the time I reach that conclusion and the time when I can arrange for a ship to take them somewhere else. In addition, I am faced with the difficulty of dealing with the people now abroad but who may be brought to this country between the time when I first have cognisance of them and the time when they also exercise this choice. It would be most unfair to the people of this country to have 70,000 or 80,000 of those people here, under no discipline, able to leave their camps as and when they like wander about the country, and, with a very inadequate knowledge of our language, attempt to fend for themselves. As Home Secretary I have had some difficulty in the past with some of these people. Isolated individuals previously connected with the Polish forces have been actively associated with black market operations in London, and a number of them have appeared before the courts and have received comparatively severe sentences.
There was one man who wandered off from a Polish camp and managed to evade all arrest or detention for three months. Having left the camp with nothing, in three months he had amassed a bank balance of £10,000. That is pretty good going. [An HON. MEMBER: "Private enterprise."] Whether it was private enterprise or not, I am sure it is not the kind of thing that will be supported anywhere in the House. [Interruption.] I wish hon. Members would not tempt me to make retorts that would not add either to the pleasantness or the shortness of our proceedings. These people are not deserters from the Polish forces, because the Polish forces, as Polish forces, have ceased to exist. These are a collection of private individuals who are here; there is no power to hold them in a camp, there is no power to deal with them if, inside the camp that we have provided for them, they are refractory, except by bringing them before the civil courts of the 357 country, and frankly, I do not know what a court of summary jurisdiction could do with a man who was accused of being out of a camp after "lights out" at night.
§ Mr. Gallacher (Fife, West)
Will the right hon. Gentleman explain whether this applies to the Polish Resettlement Corps, or does it just apply to the A and B forces within the Polish Resettlement Corps, so that some are in it, and some are out of it?
§ Mr. Ede
I had hoped I had made it quite clear that it does not relate to anybody in the Polish Resettlement Corps. He has made his choice; he is in the Corps; and as such, he is under the discipline of the British. Army. For temporary purposes, he is an alien member of the British Army, and in the Clauses that we considered during the Committee stage, we made arrangements whereby he could be enrolled in this force even if it consisted of 100 per cent. of Polish subjects. This does not apply to the Polish Resettlement Corps. It relates to those people who have either refused to join the Polish Resettlement Corps, or have not yet had the choice put to them, so that I can deal with them in a way that will preserve law and order in their ranks. As I said earlier, I have been much helped by my hon. Friend the Member for Northampton in what I hope is the logical sequence of the first seven Subsections of the new Clause. In the first Subsection, in order to deal with the problem I have described, I arrange for the appointment of an administrator, a person who appears to the Secretary of State to have good knowledge and to have been experienced in the administration of British military law, and all these forces who are not in the Polish Resettlement Corps, and who have not exercised the option of going back to Poland, will be brought under his supreme authority.
Then. Subsection (2) places these people under a direct statutory obligation to observe, in matters of discipline and internal administration, the rules in force as to these matters under the law of Poland as it existed on 1st January, 1945. That, of course, is one of the matters that has already been raised. I think it is essential that, when I have these people together in the circumstances I have explained, they should be subject 358 to a military law which they understand. It is not merely a question of what we understand, but of what these people who are in these forces understand themselves, if we are to have a spirit of discipline that will enable these units to be carried on until they have made their final selection on the alternatives submitted to them. The Subsection further provides that any member of that force who contravenes any of those rules in respect of which punishment is provided by Polish law, shall be guilty of an offence against this Section of the Statute and shall be liable to the penalties provided in that law.
I am assured that Polish law does not provide for the infliction of corporal punishment upon a man for any of the offences committed under that law and that, generally speaking, the law is milder in its administration than is British military law. The offences, and the punishments therefor, in the code of discipline which has regulated the conduct of these men for years and with which they and their officers are familiar, will be continued in force, by virtue of this Act of Parliament, and thus derive its authority in this country or wherever these people may be within the sphere of British influence, from this Act of this Parliament.
§ Mr. Warbey (Luton)
I wonder whether my right hon. Friend would make it clear whether he sees any legal difficulties to placing these men under British military law, if that were thought desirable.
§ Mr. Ede
Yes, I see the difficulty that these men are not acquainted with British military law. These units are not of long duration. My right hon. Friend the Secretary of State for War has not sufficient British officers and British warrant and non-commissioned officers at his disposal to enable these units to be staffed entirely by British officers and British warrant and non-commissioned officers.
§ Mr. Ede
Not very many, I imagine, but after all they could speak the English language. The trouble with these men is that more and more the people who are coming into the units with which I 359 am now dealing cannot speak English and their whole experience has been of Polish military law. They have served in places not in this country but in various other parts of the world where they had no opportunity of acquiring a knowledge of the English language. The death penalty cannot be inflicted.
We have now established the position in which we have an administrator who is in supreme command, and we have a body of law to which these people are amenable. If they commit offences against that law they are liable to trial and punishment, according to the standards set out in that law. Subsection (3) vests jurisdiction for trial and punishment of members of these Forces for contravention of the rules, in the administrator, and provides that the procedure for dealing with the offences shall be such as the administrator may determine. That is to say, we give him the power of determining the procedure which is to be followed so as to be quite sure that it is a procedure which, as he is responsible to the Secretary of State, will descend from the Secretary of State through him down to the humblest part of the administrative machine that may be involved.
Subsection (4) centres in the administrator and vests in him all the powers conferred by the rules on Naval, Military and Air Force courts and authorities. He will thus have all the necessary powers to enable him to act, including powers to review awards for offences against discipline. That is to say, the administrator has authority, no matter what the punishment awarded may be, to review the punishment, and if he thinks that it is inconsistent with British standards, to have it reviewed. Subsection (5) enables him to delegate his powers, under the two preceding subsections, to other persons. This delegation, I am sure the House will recognise, is necessary, since the men must be dealt with by their own commanding officers. subject to review of awards, and making the awards subject to confirmation in suitable cases. If the sentence is for more than three months, it does not become operative, unless it has been confirmed, and the administrator will be able to specify the punishment which may be imposed by officers of varying ranks, and the offences which can 360 only be dealt with by a tribunal consisting of more than one officer. Subsection (6) brings in certain provisions of the Visiting Forces (British Commonwealth) Act. 1933, which enables the commanders of detention barracks or other suitable persons to receive on competent authority a person who has been awarded a punishment under the foregoing subsection.
§ Mr. Solley (Thurrock)
Do I understand that the Visiting Forces (British Commonwealth) Act, 1933, which was passed as a result of a request of the Dominions, provides that courts in this country shall have no jurisdiction over Dominion troops in accordance with the terms of section 1 (2)? Does the Home Secretary suggest that if we pass this Clause, we shall be ousting the jurisdiction of the High Court in respect of any offences committed by Polish nationals under the Clause?
§ Mr. Solley rose—
§ Mr. Ede
This is a very detailed and complicated matter, and I am doing my best to explain it. If he commits a military offence, he will be triable under this Section. His trial will go up the chain of authority, and the matter can be raised in the House by questions to the Secretary of State, just as the workings of certain courts martial abroad and in this country have, in recent months and years, been brought before this House. He will be in this respect exactly in the same position as a British soldier. Subsection (6) ensures that if one of these men deserts from his unit and takes to a life of crime, or is found absent from his unit without leave, he can be dealt with and taken back to the unit, in the same way as a British soldier who similarly absents himself without leave. Subsection (7) provides that members of the forces who commit offences against the ordinary criminal laws of the United Kingdom should be amenable to those laws but it further provides that if any such member has been convicted or acquitted by a criminal court he cannot be tried a second time by a military court for the same offence. That 361 is as far as I managed to get with my hon. Friend the Member for Northampton before we parted company. I hope that any subsequent discussion tonight I shall, so far as the first seven Subsections are concerned, receive the valuable support of his authority and legal knowledge. I thank my hon. Friend very much indeed for the way in which he has assisted be to have a Clause which, on the face of it, could be clear as to what we are proposing to do, and while it is difficult, I hope that in these first seven Subsections we have managed to achieve that. When I come to Subsection (8) I realise that I am on more difficult ground. This Subsection frankly faces the fact that since 5th July there have been a number of people in this country who have been in Polish units which, in fact, had no legal existence at all—
§ Major Bramall (Bexley)
Can my right hon. Friend say when this fact was known, because as recently as this month I asked the Secretary of State for War a Question about it, and he gave me the categorical answer that this was legal under the Visiting Forces Act.
§ Mr. Ede
My right hon. Friend the Secretary of State for War will be speaking later in this Debate, and I have no doubt that he will deal with that point. At this moment, I do not want to be drawn into an argument, because I am merely trying to state the facts as I know them, and to explain the remedies I am proposing to apply to the difficulties that are created by the present situation. My hon. Friend the Member for Northampton was not quite accurate when he said that a decision was reached by the courts recently. What happened was that the day before the case was to have been decided the man was released, and it was, therefore, no use proceeding with the application.
§ Mr. S. Silverman
My right hon. Friend ought not to leave that point there, because if my hon. Friend the Member for Northampton (Mr. Paget) is right, that the Crown were ordered to pay the costs in these proceedings, 362 that involves judgment by that court that the man was right in his contention.
§ Mr. Ede
My right hon. and learned Friend the Attorney-General who was, I think, engaged on the case assures me that that is not so. But if that point is to be argued I shall ask him to deal with it, because I have no wish to engage in a legalistic argument with the terrible array of forensic talent that I see below the Gangway. It has been in the interests of this country that a semblance of military authority has been established over these men, and, by some means or other, they have been reasonably kept together, and under a state of discipline. Therefore, Subsection (8) frankly puts the position that it can no longer be contended that these forces have in fact been a legal military force, and that certain actions may have been taken in those circumstances, which might entail unfortunate consequences for people, who, at the request of successive British Governments, have maintained discipline over these men. We, therefore, frankly bring before the House a Subsection which is an indemnity for these people, if, in fact, they have been placed in any jeopardy as a result of their actions.
I ought to make it quite clear—and there is an Amendment on the Paper which raises the issue—that I am advised that the power of the Administrator to review sentences applies from the passing of this Act to any sentence which may have been passed on men who have been in these units prior to the passing of the Act. If a man is still serving on the day the Act passes, it will be competent for the Administrator to review the sentence and to secure that a punishment more in accordance with British standards of justice, if he thinks it right, shall be imposed on the man, in reduction of the sentence which may have been imposed.
I apologise to the House for the length of time which I have had to take in explaining this Clause. It was a matter which presented very great difficulties the other evening. I have done the best I can to ensure that this unprecedented situation which confronts us shall be dealt with by a Clause, which, I think, is reasonably easy to understand on the face of it, and which does ensure that these men shall be under reasonable discipline until they make a choice as to whether they go into the Polish Resettlement Corps or return to Poland. If 363 they make the first choice, they then come under the previous Clauses of this Bill, and get all the benefits that there are ensured to them in those Clauses. If they make the second choice, we shall be very happy to assist them in their passage back to Poland, as was explained on a previous occasion. But, if they decline to make either choice then by having this Bill, we are more easily and certainly able to deal with them in a manner which will commend itself to this House than has been the case hitherto. If we do not deal with them in a way which commends itself to this House, then the House can call His Majesty's Government to question with regard to what may happen to any individual man.
§ Mr. Speaker
It might perhaps be for the convenience of the House, if I point out that there are three Amendments to this Clause and I propose to call them all. It may save a lot of redundant discussion if hon. Members know that these Amendments are to be called.
§ 10.15 p.m.
§ Mr. Osbert Peake (Leeds, North)
The right hon. Gentleman the Secretary of State for the Home Department has taken some time in explaining this new Clause to the House. I also have given some time to the consideration of the various forms of this Clause, which the right hon. Gentleman has placed upon and has withdrawn from the Order Paper from time to time within the last fortnight. You, Mr. Speaker, ruled that this Clause was within the scope of the Bill and, whilst I would not seek in any way to challenge your Ruling, I must say I feel, like the great Duke of Wellington on another occasion, that it must have been "a very close run thing." You, Sir, have ruled, and if the consequential Amendment to the long Title is made it is clear that this Clause might be brought within the scope of the Bill.
It is really an appalling Clause. I want the House to look at it, if they will, free of all prejudice as far as the present Government of Poland is concerned. I see in the Press that the Government of Poland have objected very strongly to the right hon. Gentleman's Clause. Quite apart from that, and sympathising as I do with the difficulty in which the right hon. Gentleman finds himself, I still cannot find much to be said in favour of this Clause. It seems to me to cut across 364 almost every constitutional principle which has been established in this country for centuries. It enables alien law to be enforced in this country by alien courts. It not only does that for the future, but it is retrospective. It provides for the enforcement of alien law, which, as the hon. Member for Oldham (Mr. Hale) has pointed out, is out of date. It is not alien law at the present time in any country in the world.
§ Mr. Peake
In fact, it is not law anywhere at the present time. I ask the Committee to look at Subsection (2) of the new Clause. It says that members of the said forces, that is the Polish forces under British command, who have neither joined the Resettlement Corps on the one hand nor gone back to Poland on the other,shall be under obligation to observe, in matters concerning their discipline and internal administration, the rules in force as to those matters under the law of Poland on the first day of January, nineteen hundred and forty-five, and a member of any of the said forces who contravenes or fails to observe any of the said rules in relation to which a punishment is thereby prescribed shall be guilty of an offence…and shall be…liable…to the punishment prescribed by those rules:It may well be that under Polish military law as it existed at 1st January, 1945 soldiers may have been liable, for all I know to the contrary, to be flogged for quite a petty offence. The right hon. Gentleman suggests that Polish military law is milder than British military law, but before the House comes to a judgment on an issue of this sort, we ought to know what Polish military law was on 1st January, 1945. Until we are so informed, it may well be that the punishments are more severe and, in fact, may be of a character of which the people of this country would wholly disapprove. Yet we are invited to hand over to a gentleman who is known as the Administrator, the power to enforce this alien law to carry out these alien punishments and to do so without any right of appeal to any British court of law. In the difficulty in which we find ourselves I very much prefer the solution suggested by the hon. Member for Luton (Mr. Warbey). If there is to be military law imposed upon these people surely it should be British rather than any foreign law? Then at any rate we could ask questions of the Secretary of State for War in regard to punishments imposed or sentences of courts-martial. 365 As it is, as far as I can see, it will be impossible to raise any question in this House relating to any of these decisions, judgments or sentences imposed by the administrator or delegated by him to Polish subordinates.
§ Mr. Ede
The right hon. Gentleman has partly put himself in this difficulty by omitting certain words when he read Subsection (2) of the new Clause. Line 13, for example, says:…shall be guilty of an offence against this section…The right hon. Gentleman omitted the words, "against this section" when he read the Subsection to the House.
§ Mr. Paget rose—
§ Mr. Peake
The punishment to be imposed is a punishment under the law in force in Poland on 1st January, 1945, and if the right hon. Gentleman is going to be prepared to answer questions relating to the enforcement of discipline over these Polish soldiers in this House he will have to justify the action taken by the administrator in accordance with the law of Poland as it existed on 1st January, 1945. It seems to me a strange thing that any Minister should stand at that Box and justify anything on the ground that it is according to the law as it existed in a foreign country on a given date in the past.
§ Mr. S. Silverman
Would the right hon. Gentleman not agree that that is a little better than the position was right throughout the war from the passing of the Allied Forces Act until 1st June, 1945? In those days, while the same law applied there was no possibility of any British Minister, any Member of this House or any court 366 in this country having any say in the matter at all, whereas now they will have.
§ Mr. Peake
I entirely agree that this is an improvement upon the position as it existed during the war, but of course one can justify things in wartime which cannot possibly be tolerated in times of peace. During the war, with all these different Allied Forces here of all sorts of nationalities, it was in fact the only practicable way of dealing with the question of their discipline, but here we are nearly two years after the conclusion of the war. At this stage, owing to the failure to recognise that the Visiting Forces Act of 1940 ceased to apply in July, 1945, we are faced with the difficulty of having to devise some system of enforcing discipline upon Polish forces on our soil and of making the provisions of that law retrospective. In all the time I have been in Parliament I have only seen two worse Clauses than this upon the Order Paper, and those are the two previous Clauses which the right hon. Gentleman put down to deal with this matter and has since withdrawn—
§ Mr. Peake
As the right hon. Gentleman has said, they are getting progressively less bad, but even this Clause is a bad Clause. I hope that the right hon. Gentleman will not provoke a Parliamentary crisis by pressing it on the House tonight. He had much better take this Clause away and give it some further thought and consideration—[Hon. MEMBERS: "Hear, hear."]—and if necessary introduce a new form of it in another place. I can assure him that feeling on this matter is strong in all quarters of the House, and that he cannot possibly force this Clause through in its present form without the strongest possible objections and without doing violence to the consciences of a great many of his own supporters. I therefore beg the right hon. Gentleman not to waste hours of time tonight, as I am afraid he is going to do, as he did during the Committee stage of this Bill, but to withdraw the Clause fairly soon and take it away and give the matter much more careful consideration than he has given it so far.
§ Mr. S. Silverman
When my right hon. Friend the Home Secretary had the previous new Clause on the Order Paper, I put down an Amendment 367 with the purpose of taking away all reference to Polish or any other foreign military or civil law, and substituting for it a reference to British military and civil law so that these persons, in whatever corps they were retained, and for whatever period they were retained, would be subject to British law as it would apply to British citizens in the like case in or out of the British Armed Forces. I am therefore under some obligation to explain why I have not put down that Amendment to the Clause now upon the Order Paper. In the interjection I made just now in the right hon. Gentleman's speech, I gave an indication of my reason.
The great objection to the other Clause was that it continued in peacetime all the disadvantageous effects of the Allied Forces Act, 1940, long after any conceivable need for that Act remained. The criticism of the right hon. Gentleman opposite, whatever merit the criticism might have had, came with singularly ill grace from a Member of the Government that was responsible for the Allied Forces Act at the time and carried it through against objections that were made in many quarters of the House at the time. The right hon. Gentleman said that these things were necessary during the war and it was the only practicable way. I never believed that, and I said so on the Second Reading of that Bill. Other hon. Members of this House took the same view, notably the right hon. and learned Member for Montgomery (Mr. Clement Davies)—
§ Mr. Silverman
I will say nothing about that because it might lead me into a series of reminiscences which would be out of Order I will not run my head against that. I thought that the sting of those objections was removed by the first seven Subsections of this Clause now before the House. They do no more than take Polish military law as it was at that date—Polish military law as it always applied to the Polish Forces under the Allied Forces Act—and incorporate it into the law of this country for this category of persons, because that kind of law is better for them than our own kind of law in the circumstances in which they find themselves.
§ 10.30 p.m.
§ Mr. Silverman
I do not think I would defend it, and if there were any reason to think that Polish law was even as severe as let alone more severe than our own military law, then I would be against this Clause. What is being applied to them in this Clause is exactly what has been applied to them with the unanimous consent of this House for the last six or seven years under their own Government exiled from their own country, and not responsible to anyone. It was no answer to say that these were under the authority of the Polish authority in London. It was never a Government.
§ Mr. Silverman
I do not know what right of appeal to the supreme court of Poland there might ever have been, but once we give legislative sanction to this Clause, and make it part of the law of Great Britain, then those persons who-are charged with exercising the functions given to them by our legislative act, are answerable for any exceeding of their powers to our courts, just as our own military officers would be answerable in our courts for any exceeding of authority committed by them in our own Army towards our own soldiers subject to the -prerogative, certiorari and mandamus, and the rest of it.
§ Mr. Scollan (Renfrew, Western)
How could I, as a Member of Parliament, challenge the Minister about someone exceeding his powers under Polish law, when I do not know what the Polish law is?
§ Mr. Silverman
I think the answer to my hon. Friend's question is this: He would not desire to ask a question unless he had notice on the basis of a complaint 369 of which he had been made aware. Anyone who came to him with a complaint would presumably tell him exactly what he was complaining about, and that could he investigated, and a question directed at the Secretary of State for War, who would assume responsibility for the acts of the Administrator appointed by him.
§ Mr. Driberg
One does not raise a question in this House without verifying the facts, and how in this case can one verify them?
§ Mr. Silverman
I should have thought it would be perfectly easy. If a British soldier came to me with a complaint, and I knew nothing about British military law, I would find myself in no difficulty in ascertaining on the facts given by him whether there is a question I am justified in putting down.
§ Mr. Gallacher
I raised a question about the case of a foreign soldier in which there was an allegation of thrashing. If someone came to me with a complaint about a Polish soldier I should not know whether it was Polish military law or not.
§ Mr. Silverman
I am bound to say that if you have to apply British military law to the people in this Corps in these circumstances, then the Polish soldier who wanted to make a complaint would find himself in a very much greater difficulty in knowing whether an offence had been committed against him under British military law, than he would be in knowing whether an offence had been committed against him under his own law; that is to say, under the law under which he had been serving ever since 1940.
§ Mr. Solley
I am rather puzzled whether the hon. Member is arguing in favour of Subsection (2) of this Clause. I see that his name is appended to the first Amendment, which seeks to exclude Polish law. I would be obliged if the hon. Member would say whether he is in favour of Polish law or English law in this matter.
§ Mr. Silverman
In what I have said so far, I have not suggested that there are not a number of respects in which I would like to see this Clause amended. I would like to see Subsection (8) go altogether, and other Subsections amended. But what I am arguing at the moment is, that what 370 ever kind of law you are going to have should be understood by these persons, and embodied in our own legislative code; that there should be a Minister answerable for it in the House of Commons, and that there should be a right of appeal to the High Court.
§ Mr. Silverman
That is why I did not put down again, on this Clause, the Amendment which I put down to the previous Clause which would impose British military law alone. Having said that, I would like to ask my right hon. Friend to explain why it is necessary to have such a Corps at all. If you do not have it, you do not need this kind of Clause, or any other kind of Clause. What this Bill is for is to say what is to happen to people who wish to go back to Poland, and what shall happen to people who wish to go into the Polish Resettlement Corps. My right hon. Friend said that supposing they did not make any choice, he must do something with them. If they do not make any choice, he can make the choice for them. He can so draft his Bill that anyone to whom the whole Bill applies would be compelled by a certain date to make his election between the two courses, or if he failed to do so, to have one or other choice between these two made for him. That would be perfectly fair, and would get rid of the whole difficulty. I do not see, for the life of me, why it is necessary to have this kind of limbo between those who are prepared to go back to Poland, and those who go into the Polish Resettlement Corps. Why do you want the Corps at all? It is bound to give rise to all kinds of misunderstandings. It is bound to give further strength to international suspicions. It is bound to give further argument to those who are already claiming that the existence of a Polish militarily disciplined force, operating under Polish military law and established under extinct Polish military law, is a danger to the new States which are being formed, and is an impediment to improved relations between our country and the new Poland. I can see that if it is necessary to have this intermediate Corps at all, it is necessary to have a code of discipline. I can see that it is better, on the whole, to have a code of discipline, provided you have 371 safeguards in the courts and in the House of Commons. I concede both of these things, on the basis that it is necessary to have this Corps at all. But I cannot see that it is necessary to have this intermediate arrangement, or to be landed with this source of international mistrust.
§ Professor Savory (Queen's University of Belfast)
I want to reply very briefly to some remarks which were made by the Home Secretary in introducing this Clause. The right hon. Gentleman divided the Poles into three categories, namely, those prepared to go back to Poland, those who will willingly come into the Resettlement Corps, and those who refuse to do so. The right hon. Gentleman spoke at rather considerable length on this last category, and I think actually made a threat that, in certain cases, those people would be deported to Germany. [Interruption.] I believe the Home Secretary has patience in this matter. I would like to say that since he spoke on the second reading of this Bill, I have inquired of some of my Polish friends as to why some Poles do not wish to join the Resettlement Corps. I would say that some of the reasons may appear to be very strange to some right hon. and hon. Members, but I will tell the House what they say. The Home Secretary should give an assurance which may encourage these people to join the Resettlement Corps. Poles, like the Irish, have very long memories, and one of the strongest memories which they have is of the Napoleonic Corps of San Domingo, and of the fact that those Poles sent to San Domingo were completely exterminated. I ask the right hon. Gentleman—will he give an assurance that these Poles will not be sent out of the country? If he will do that, he will be doing a very great work.
§ Mr. James Callaghan (Cardiff, South) rose—
§ Professor Savory
I shall not keep the House for another minute. I am trying to put my point as briefly as I can. Some malicious people, and I know who they are, but I will not disclose more than that, have spread rumours. The rumours are that these people who go into the Corps will be sent out to Burma where they will be used to clear out swamps, and there is—
§ Professor Savory
The Home Secretary should give an assurance that none of these Poles who join the Resettlement Corps will be sent abroad. I repeat that if he would do this, he would do a very great work. Some of these Poles would like to set up by themselves. There are some, such as cobblers, who would like to start in their own trade, and others would like to join together in twos or threes to open, perhaps, a sweet-shop. But the difficulties of getting the necessary licences, and the fact that there would have to be a British subject placed over them is a deterrent to these Poles. Another thing which is causing them anxiety is this. It is, I would tell the House, a very strong reason. There has been published in Warsaw a statement that Poles who join this Resettlement Corps will, ipso facto, be deprived of their Polish nationality. That statement has been broadcast, and it has acted as a very strong deterrent against their joining this Corps. Furthermore, the Poles are also afraid that if they are compelled to register, as of course, they must, if they join the Resettlement Corps, the fact will be known in Poland and reprisals will be taken against their relations—against their wives and children, as has been done in innumerable cases hitherto.
§ Mr. Bing (Hornchurch) rose—
§ 10.45 p.m.
§ Professor Savory
No, I intend to finish my speech. If something could be done to reassure these Poles that the names of those who register in this Resettlement Corps will be treated as confidential, and will not be known outside this country, that will have a reassuring effect. I assure the House that these Poles are placed in a very difficult position, and I implore the Home Secretary to show how sympathetic he can be towards them. I deprecate the use of the word, "tough," because I think that is a rather deplorable word to use towards these gallant men. I ask the right hon. Gentleman 373 to be very sparing of such language, and I further implore him not to use the threat that those Poles who either do not go to Poland or do not join the Resettlement Corps, will be deported to Germany. To send them back to the people who have treated them with such intolerable barbarity, not only in their own country, but in Germany, is Ito do something Which the Home Secretary, even at the last moment, would hesitate to do. It would have a deplorable effect on the whole Polish nation, not merely here, but on the six million Poles throughout the United States.
Such a threat should never be used. The threat has been made to them—exactly as the Home Secretary Stated—that they will be allowed 40o marks, and that they will be permitted to take only £10 out in our currency. That is having, on the Poles, a deplorable effect. There is no need to exercise these threats. A certain amount of patience and persuasion, and the assurances I have asked for publicly from the Home Secretary, will, I feel certain, from the conversations I have had since the Second Reading, have a most salutary effect, and make it absolutely unnecessary for him to put this threat into operation.
§ Mr. Hale
I do not intend to follow the remarks of the hon. Member for Queen's University (Professor Savory), partly because I was unable to follow the relevance of what he said in regard to this new Clause and, secondly, because I do not desire to take any part whatever in a discussion on the general merits of this Bill. I rise purely to deal with the merits of the new Clause. We are grateful to the Home Secretary for his very careful and detailed explanation of what the new Clause is intended to mean, but I want to find out, if I can, what it really does mean, and to submit, with great respect, that it does not mean what my right hon. Friend said it was intended to mean. I have had, for many years, a great respect for the learned ability of my hon. Friend the Member for Northampton (Mr. 374 Paget), but I cannot congratulate him on this particular effort—
§ Mr. Hale
I am much obliged. I was not holding my hon. Friend responsible, but only saying that I do not agree with some of the points in the new Clause. May I, therefore, deal with the new Clause piecemeal? Subsection (1) provides that an administrator shall be appointed with a knowledge of British military law. He is to be of British nationality, but not of British nationality by birth necessarily. He may be a person who was a Pole and who was created British by the action of the Home Secretary administratively a day or two before his appointment. He is to have a knowledge of British military law for no known reason whatsoever. British military law is the one qualification he need not have. He can ignore that completely.
Then we come to the main provision, and I do regard this as raising the most serious, the most profound, and the most disastrous constitutional issues. It is laid down that this administrator, who is not to have any knowledge of law at all, except British military law—who may, indeed, have acquired that experience by service in the Army, who need not necessarily have a judicial training or experience, or any special legal education or experience—is to administer a wholly new legal system which is to be based on the law of Poland on 1st January, 1945. The selection of that date really is quite remarkable, because on 1st January, 1945, Poland had been occupied by a hostile power for over five years, and of course, it follows that no manuals of Polish military law had been published for five years at least, that there was no effective legislative authority which could make the law, that there were various Governments each claiming the power to legislate, that there was a Provisional Government in London which had been purporting to legislate and issuing decrees, and so, if it were a question of what was Polish military law on 1st January, 1945, one could have at least a hundred opinions on any given subject. One could abide by the law of 375 the Provisional Government, by the law as stated in 1939, or one could endeavour to build it up on the basis of the decrees made since internally, or possibly published by underground sources. But it does not rest there. It is our habit to recognise the laws de facto, or the law of the Government de facto, rather than the law of Governments de jure, in this matter. We recognise General Franco and the law he lays down under his—
§ Vice-Admiral Taylor (Paddington, South)
The hon. Gentleman says that no Polish military law had been introduced five years previous to 1945. What law did the Polish military officers apply with regard to their forces?
§ Vice-Admiral Taylor
There may have been complaints, but they must have had a Polish military law which they carried on with regard to their forces.
§ Mr. Hale
The hon. Member says that is "absolute tripe." I am always grateful for any contribution. All I can say is that I speak as one who was in some way responsible in the administration of military law during the last war, and certainly the law with regard to the administration of courts martial on active service which was laid down by this country, is very different from the administration of courts martial in time of peace, and the administration and the punishments that can be imposed when a regiment is in battle are different from those that can be imposed when a regiment is on home stations.
§ Mr. Blackburn
I beg my hon. Friend's pardon for the language I used, but the point being put quite rightly by the hon. 376 and gallant Member for South Paddington (Vice-Admiral Taylor) was that there was such a thing as Polish military law. My hon. Friend answered by saying that, apparently, there was no such thing as Polish military law, because it was indifferently administered. It matters not whether there is a good judge or a bad judge, whether there is a correct decision or an incorrect decision, the law remains the same, and in any event, despite the unevenness of the administration, there is no doubt that there is one.
§ Mr. John Foster (Northwich)
Has the hon. Member for Oldham (Mr. Hale) considered the fourth alternative—that the law of Poland on the first day of 1945 could only have been the law which the present Government of Poland says was the law of Poland on that day?
§ Mr. Hale
That is most interesting and it is a most valuable addition to the Debate. In the first instance the Government of Poland may vary from day to day or month to month. No Government has ever taken responsibility upon itself to say what its law was 18 months ago. That would be a very bold judgment and decision. You cannot declare an individual law without saying what it is. The second and most vital point which occurs to me—
§ Mr. Gallacher
On a point of Order. I want to ask if this matter cannot be taken by the learned Attorney-General before the legal House of Lords?
§ Mr. Deputy-Speaker (Mr. Hubert Beaumont)
That is not a point of Order that I can deal with. I think we had better let the hon. Member for Oldham (Mr. Hale) continue his speech.
§ Mr. Hale
May I say that I do sincerely believe this to be a grave constitutional 377 issue and in the circumstances I do not propose to give way any more while I am developing my argument. There is a serious question as to whether the law of Poland on the first of January, 1945, was the law of Germany or the law of Poland. Someone has got to decide what was the law of Poland on the first of January, 1945. I want to ask the learned Attorney-General to say who is charged with that decision. I want to know who is charged with the decision as to what was the law of Poland on the first of January, 1945. If it be the administrator, who is a man who knows only British military law, what are the sources of information available to him? How will he make himself conversant with and cognisant of Polish criminal law? These matters of internal administration may cover all the crimes known to the law and quite possibly some not known to the law. The Home Secretary suggested that the real purpose of this provision was to deal with men away from their camp after 10 o'clock at night.
§ Mr. Ede
I must protest at the suggestion that that was the real purpose of this provision. I suggested it might be difficult for a British civil court to deal with such a matter. I had in mind the Amendment in the name of the hon. Member for Nelson and Colne (Mr. S. Silverman) to deal with the trivial kind of offences which are offences against military law but which are not offences against civil law.
§ Mr. Hale
May I say that I thought the Home Secretary's argument was that we could not use British law because it may not cover trivial matters. I did not say that you cannot use British military law. I said that these people understand Polish military law, and I was dealing with people who are subject to the law as well as those who adminster it. If it is necessary for soldiers to understand military law, how many of the 7,000,000 British soldiers in service in the last war understood our law, or, indeed, had any chance to understand it. Was it not almost a prohibited thing to have a copy of King's Regulations available at all? It was extremely difficult to get the manual of military law if you were in the Services.
§ Mr. S. Silverman rose—
§ 11.0 p.m.
§ Mr. Hale
I did say I would not give way to the hon. Gentleman because he sug- 378 gested that I had misrepresented him. I will give way when I have developed my argument, but up to now I have had little opportunity of doing so. I ask the right hon. and learned Gentleman the Attorney-General who is to decide. Is it the Administrator? If it be the Administrator, to what appeal is he subject? My hon. Friend the Member for Nelson and Colne (Mr. Silverman) said that there would be a prerogative writ issued from our High Court in the case of any Polish soldier aggrieved by the action of the Administrator. I see no authority for that. It would of course be so, if this were subject to English law, but we are superimposing the law of a different country upon our system.
Let me put the second point. If my hon. Friend will refer to Subsection (3) he will see that it is not even necessary for the Administrator to abide by any code of conduct. He is given power to conduct trials without evidence, without hearing or without witnesses. It is clearly implicit in that he can conduct his jurisdiction according to such rules as he thinks fit. I think that is most undesirable in any circumstance. I want to follow this up, because if a man is to be tried according to Polish law as it was on 1st January, 1945, clearly he has all the rights of appeal that are given by Polish law to a military subject tried by a Polish military court, and if, as one is bound to assume for a moment, Polish law has some similarity to ours—this House is in the very unhappy position of not knowing what are the rules of law to which we subject these people by this Clause—if the rules of law be the same as ours, then of course, the High Court of Britain has power to call into question the judgment of military courts, and, in the same way, the High Court of Poland may have power to call into question the decision of these courts.
I require an answer to this question. If there be under Polish law a right of appeal to the High Court of Poland, how is it to be exercised? What facilities are to be given? How are the witnesses to be transported? Who is to pay the costs, and who is to guarantee the safe return of the people sent to hear the appeal? If the Polish court of appeal deals with the matter in absentia is there still a right by prerogative writ, to appeal to the High Court of this country. Assuming that it 379 gives a decision conflicting with that of the High Court of Poland, what happens then? I want to point out one minor drafting omission in this Clause. It says that you cannot impose the penalty of death. I happen to be an opponent of capital punishment, and I welcome that provision, but what is going to be substituted? If you abolish the death penalty without substituting anything else, it means that the murderer must go free, because then the court has no power to impose any penalty at all.
I want now to deal with a substantial constitutional issue. My hon. Friend the Member for Nelson and Colne said that all these matters can be impugned in the courts of Great Britain. If that be so, are we really asking our judges of the High Court to endeavour to learn a completely new code of law? I gather that my hon. Friend suggests that one may have to know in certain cases what is the law of certain other nations, but in such circumstances an expert lawyer gives evidence on that one point. We have to assume that association with the law calls for some profundity of knowledge—knowledge of legal principles, of legal practice and, indeed, of legal history. All this is going to be a closed book to our High Court as regards Polish law, and apparently they are going to be called upon to administer judgment merely on a knowledge of Polish law as it existed on 1st January, 1945, by some persons who could not have been there at that time, and on a mere tittle of evidence.
§ Mr. Hale
The hon. Gentleman has not been following me. That is precisely what I have been saying, but it is most undesirable to administer a whole code of law without knowing any of the principles on which it is based, and without knowledge of the events which have taken place. Then we are to have this extraordinary conflict of law which is absolutely fundamental. The hon. Gentleman the Member for Northampton (Mr. Paget) referred to a writ of habeas corpus issued by some Polish citizen in recent days. As I understood the position the Attorney-General went there intending to argue that the writ would not apply. What I am saying is 380 that when the question of habeas corpus was raised with regard to a Polish soldier it was the intention of the Crown to argue that a writ of habeas corpus could not be issued because he was a Polish person serving in the Polish Forces. I was asking for information from the Attorney-General.
§ Mr. Hale
It would be much more convenient to have it answered now. (HON. MEMBERS "Answer."). Very well, I must take it on the basis of the alternative. Either it is the point of the Crown that a writ of habeas corpus does lie or that it does not. If it is claimed by the Crown that a writ of habeas corpus does not lie, this means the abolition of the greatest Measure of safety that has ever been passed in this country and one of the great bulwarks of our liberty. I have been rather expecting the right hon. and learned Gentleman the Attorney-General to get up and say, "I want to move a small consequential Amendment to include the repeal of the Statute of Magna Carta, the Habeas Corpus Act, and so on."
Let me take this one step further. Supposing a British subject to be imprisoned by a Polish military court. Can he issue a writ of habeas corpus? And supposing there to be a question of whether a man has opted to be a member of the Polish Resettlement Corps or of the Polish Forces. Who has jurisdiction then? Can that be met by writ of habeas corpus? Of course, if it can, the whole question is then raised as to whether the imprisonment is illegal or legal. Then you have the whole question going to the British Courts to determine the whole body of Polish law as it stood on 1st January, 1945. I think that that is a matter of fundamental difficulty.
Let me come to Subsection (8), which even the right hon. Gentleman regards as a somewhat unhappy child. This is the Subsection which gives virtual indemnity for anything which happened before the passing of the Act or, as my hon. Friend the Member for Nelson and Colne has said, anything which occurs before the Act actually comes into force. It would, as I understand it under the rules, give an 381 indemnity if a Polish officer had wrongly imprisoned a British subject. As I understand it, and subject to correction, there is no right of appeal and no right of question. It merely says that the status quo shall be observed, and, indeed, on more technical reading of it it means that if a person is in prison he remains in prison until a special Act of Parliament amends this Bill and it must be passed by this House and another place before the person is released. It is a dreadful Clause to put before us at this late hour on the Report stage of a Bill dealing with something else.
I ask the right hon. Gentleman to deal with one other point. What really is to be the position where we come into conflict with jurisdiction? I know there is a Clause now to extend this same position under British military law, but in British military law the civil courts are supreme. They have a preponderant jurisdiction over all matters amenable to their jurisdiction. Here we have a position in which sentence passed by one court shall have no relation to another. What is to be the position if a British subject and a Polish subject engage in a common enterprise within a Polish camp? Under whose jurisdiction will they come and who will be the administrator? Under what set of laws will they be tried? Will the Pole be tried under Polish law or under the law of Britain, and will the British subject be tried under British law or under Polish law? It may be more than a technical offence, because if the, parties are engaged in a conspiracy, unless they are tried together the effect is that a conviction on both fails. We may have this horrible position in which a whole set of different laws apply and under which people engaged in a common enterprise are treated by different tribunals. I say with all seriousness and great gravity that some of us who have read this Clause feel very deeply about it. Certainly the Government are proposing a fundamental amendment to our Constitution. Certainly we are embarking on something which has not been done before. We feel that in doing this the Government are not merely imperilling the rights of this army but of all British subjects, too, and we feel that they may create a direct conflict between the Judiciary and the Executive, which might be of vital importance to our Con- 382 stitution. I appeal to the Home Secretary, whom we are anxious to help in his difficulties, to try to find a solution amenable to all parties, and I ask him to withdraw this Clause and think the matter over.
§ The Attorney-General
I listened with great interest to the arguments which have been raised in the course of this Debate, but I confess I think that sometimes they were perhaps a little academic and a little detached from the practical realities of the situation which exists here. We are seeking to deal with a temporary situation in regard to the Polish forces—I use that term in a neutral sense—and we cannot close our eyes to the fact that a great many members of that force do not speak the English language at all, and certainly do not know the first thing about English law in general or English military law in particular. What we are seeking to do in regard to the forces in these circumstances for this transitional period is to continue to apply to it, with certain' new and very significant safeguards, the operation of a system of law which has without difficulty been applied to it hitherto, namely the military law which was upheld by the Government of Poland on 1st January, 1945, and which Government we recognised.
In, the first instance—and I deal with a question which was put to me by my hon. Friend the Member for Oldham (Mr. Hale)—it will be for the person to whom the powers are delegated by the Administrator under the Clause, to ascertain what that body of law is. That is a task which has been imposed on the officers of this Force ever since they came here in 1940, and which they have hitherto succeeded in discharging without any great difficulty. In the second instance it will be for the administrator appointed by the Secretary of State to ascertain as a question of fact what that body of law, that is to say, the body of law recognised by the Government and which was recognised by His Majesty's Government on 1st January, 1945, may happen to be, and eventually it would be for the courts of this country to ascertain what that body of law in fact was. They would ascertain that in the way they have to 'ascertain problems of that kind in many cases which come before them from time to 383 time, and they would ascertain it in any case where a Polish soldier, alleged that he had been dealt with in a way which was not in accordance with the law in force on 1st January, 1945.
In such a case—and here let me answer the second point put to me by the hon. Member for Oldham—such a soldier would certainly be entitled to apply for habeas corpus, to bring an action for damages for wrongful imprisonment or to exercise any of the other remedies which are available to a person living in this country, whatever his nationality may be, if he is proceeded against otherwise than in accordance with the law of this country. I say in regard to the Zytomerski case, which has been mentioned that it was never in my mind to suggest that habeas corpus did not lie in such a case. What I might have had to argue if the question arose, and it did not arise, was that although the Polish soldier was entitled to apply for habeas corpus, those who had him detained were entitled to say that under the law in force in this country his detention was legal under the Allied Forces Act, 1940—
§ Mr. Solley
Will the Attorney-General allow me to ask a question based on what he has just said? He said in effect that in the last analysis the Courts of this country could intervene in suitable cases and if the right machinery is put in motion. I would like to draw his attention to Subsection (6) of this Clause which says in effect that with suitable modifications, Section 1 of the Visiting Forces Act, 1933, shall be enacted in the form of an Order. Has he observed the terms of Section 1 (3) of that Act which says follows:Where any sentence has, whether within or without the United Kingdom, been passed upon a member of a visiting force by a service court of that part of the Commonwealth to which the force belongs, then for the purposes of any legal proceedings within the United Kingdom the court shall be deemed to have been properly constituted, and its proceedings shall be deemed to have been regularly conducted, and the sentence shall be deemed to be within the jurisdiction of the court and in accordance with the law of that part of the Commonwealth….Does he say, in the light of that, that if that is re-enacted under this Clause there is any remedy at all on the part of a Polish national who desires to appeal to the High Court in this country?
§ The Attorney-General
If my non. Friend will look at Subsection (6) he will see that there is nothing in that Subsection which in itself applies the whole of Section of the Visiting Forces Act, 1933. I will presently indicate the way in which that Act has already been applied, the limited purposes in which it has been applied, and the manner in which it might—not necessarily would—be applied in the future. I really do suggest to the House that there is no great principle of constitutional law involved in this matter. I say at once that I would be the last to support anything which affected any inroad on these fundamental principles of our constitutional laws inscribed in the Constitution in the days of the Tudors and the Stuarts, to which reference has already been made. The position here is at once simple and, I venture to think, unique. Certainly it is simple in this sense, that what it is intended to do is to put beyond legal doubt the continued validity of action which until recently at all events was admittedly legal. Until the unilateral action taken by the present Polish Government it was, admittedly legal, and even now, although its legality may be in doubt, it has been done in good faith and in circumstances which really left no practical alternative in the hands of those responsible for the continued administration of the Polish Forces in which discipline has still to be maintained, despite the fact that the present Government no longer continue to recognise this force as part of the existing Polish Army.
It is simple in that sense, and it is unique in this; that the necessity for maintaining discipline in a force of foreign origin of this kind in the United Kingdom has not arisen before, apart from the circumstances which arose during the war, and are not likely to arise again. It is not correct to say that the illegality of the action taken by the officers of the Polish Forces in continuing to enforce discipline in these Forces after they had ceased co be recognised by the present Polish Government was in any way admitted. The habeas corpus proceedings in the case of Zytomerski were not prosecuted to a conclusion. There was no judgment.
§ The Attorney-General
Costs were awarded against the Crown, but I will be perfectly frank about this. That is one of the reasons why costs were awarded against the Crown. The matter is one of considerable legal obscurity, and two views are held about it, but it does not of necessity follow—and I put it no higher than this—that the unilateral action of the Polish Government in withdrawing their recognition of the Polish Forces resulted in the Allied Forces Act of 1940 being no longer legally applicable.
§ Mr. Solley
On a point of Order. Is it in Order for the learned Attorney-General to say what he has just said when, in effect, it is a challenge to the decision of the King's Bench Division in a recent case?
§ Mr. Deputy-Speaker
The remarks of the right hon. and learned Gentleman are quite in Order so far as I am concerned.
§ The Attorney-General
I would like to make it clear that I am challenging no decision at all of the High Court. I have made it abundantly clear to every hon. Member of the House except my hon. Friend that no decision in that case was given at all. The question was not argued by either side, there was no judgment at all—the question did not arise because the body of the person in respect of whom habeas corpus proceedings were brought had already been released.
§ Mr. S. Silverman
I understand that no decision was given in that case for the reason that has just been given—that the detained soldier was released. Here there was a question of real legal difficulty. Could the right hon. and learned Attorney-General explain to the House why that occasion was not used for obtaining a decision upon it.
§ Mr. Julius Silverman
Why did my right hon. and learned Friend, consent, if he did consent, to the award of costs against the Crown?
§ The Attorney-General
For the reason that I thought the matter was one of great difficulty, and in the circumstances of that case I did not consider it expedient to argue it at that time. I am not saying now, and I do not want to suggest to the House for a moment, that the Allied Forces Act of 1940 continues to apply. I am saying that there are two views upon this matter, and it must not be assumed, 386 as some hon. Members assume, that I have accepted that the detention of the Polish soldier Zytomerski or any other soldier detained in similar circumstances, is illegal. I merely say that that was not decided in this case. What happened was that before the Act came to be argued before the Court at all, the Polish officers —and I am using that phrase in a neutral sense decided on advice, which had been given some weeks before by the chief psychiatrist to the British Army, that Zytomerski was not a person who could usefully be retained in the Polish Forces. He was therefore discharged. That obviated any necessity for a legal decision being given on the question of the legality of the actions which were taken in this case.
As far as I am aware, though I can only speak for myself and my Department, no member of the Polish Forces has made any claim that he has been illegally dealt with, that he has been illegally detained, or has sought to exercise any kind of remedy. There may, or may not, be such cases. I can simply say that none have so far been brought forward. On the other hand, the disciplinary powers of the officers who are at present administering the Polish Forces have admittedly been questioned, and in those circumstances, since the Forces must continue to be administered, since discipline must continue to be maintained, since there is no suggestion whatever of any bad faith on the part of the officers concerned, no suggestion of any arbitrary exercise of power by them, it seemed right to us to resolve the legal doubt which existed about this matter by the provisions which are contained in this new Clause. There is no great constitutional principle involved in this; there is nothing clandestine about it, nothing secret about it. The House is fully master of the position. Here is this Bill dealing with miscellaneous transitional matters. This is essentially a transitional matter. Parliament, if it passes this new Clause, will merely be permitting for a few months longer the continued operation of that system of law, the operation of which was expressly provided for in the Act of 1940, and the application of which has never been challenged in this House as being inconvenient, as giving rise to hardship, as causing injustice, during the whole period of seven years. It is nearly two years since the war ended, but until 387 this Clause was put on the paper a few days ago, no Member of this House thought it right to get up and say that there was anything unconstitutional in the provisions of the Act of 1940, or in the way in which those provisions were being operated at present. Nor had any hon. Member sought to say in this House that there was any hardship, any inconvenience, or any injustice in the application of Polish military law to Polish soldiers.
§ Mr. Scollan
May I ask my right hon. and learned Friend to deal with this point? A very serious situation arises in Scotland, where a large number of these men are to be billeted. Under this Clause you are going to impose in Scottish law, which is entirely different from English law, an extra-territorial right in regard to these people. You are doing so by passing this Clause in an English Parliament. That is a breach of the Treaty of Union.
§ 11.30 p.m.
§ The Attorney-General
Well, I must say that the law of Scotland is certainly ground upon which, having many of the qualities of an angel, I fear to tread. I do not intend to pursue the point which has just been put by my hon. Friend. All I would say to him is this—and it will answer some other hon. Members who have spoken—that if any constitutional questions are involved here, as to whether it involves any abrogation of the Act of Union, the answer is that that principle has been involved since 1940 and it has never occurred to anybody. It must be remembered that Parliament is omnipotent in these legislative matters. I have not spoken of the political aspects of this Clause. But so far as the legal aspects are concerned, the position is clear. Parliament is omnipotent in matters of this kind. It has been said that Parliament can do anything except change a man into a woman, although I see no insurmountable objection to Parliament indulging in even this process. But it might well be that the physiologists might have something to say, and I will not pursue the claim.
The matter is entirely a matter for Parliament. There is no legal, nor, I venture to suggest, administrative reason why this matter should not be dealt with virtually in the same way as it has been dealt with in the last seven years. I agree that it may occasionally happen that cases 388 may come before one of the courts of this country, and the law as at 1st January, 1945, will then have to be ascertained. There is, I assure hon. Members, nothing novel about this. Our courts frequently have to decide matters of this kind. They decide them in Admiralty cases, and in actions concerned with foreign marriages. One could make a catalogue of the cases which arise, and the cases are decided according to the particular matter before the court. The matter here raises no legal nor constitutional issue. It is simply one of convenience. I have no doubt that we could deal with this matter in the way contemplated by one of the amendments. For instance, we could ascertain what was the military law in force in Poland on 1st January, 1945. We could ask the War Office staff, assisted by armies of translators, to re-produce every line of Polish military law. Then, having ascertained what it was, we could embody it all in an Order in Council, and then reenact it as part of English law. We could do all that—it is one way of dealing with this matter. But the only benefit to accrue would be that we should have re-enacted the laws which had hitherto bound the members of the Polish Resettlement Corps in a language which they no longer were able to understand. It would apply to members of the Resettlement Corps, and, therefore, for this one reason alone, we think it better not to go to that lengthy process, but to deal with the matter not in this way, but in a way which a member of the Polish Forces has understood for the past seven years, and which he is able to understand during the few months in which this is in operation.
§ Mr. Paget
If my right hon. and learned Friend will look at Section I of the Visiting Forces Act he will see that it provides that these Poles should be controlled by such laws as are conferred upon them by the law of Poland. What power has this law of Poland conferred on the armed forces of Poland at the moment. Were not affidavits filed by the Polish Government to the effect that they had no such powers?
§ The Attorney-General
I do not quite follow the question. Perhaps it is my stupidity, but I thought I made it clear that the body of law which will be applied under this new Clause is not the body of law which may be recognised by the existing Polish Government, but is that which was recognised by the Government 389 of Poland, which itself was recognised by His Majesty's Government.
§ Mr. Pritt
I have listened to a great many of the things that have been said tonight, and I have mixed feelings about this Clause. I feel a great deal of sympathy with the proposition which is covered by the first Amendment. It is a good idea—and I shall have some sympathy from the Opposition for this point of view—that we should know the law that we are passing. It is said by the Attorney-General that it is a great disadvantage that these Poles should be expected to obey a law which they do not understand, and which is in a language they do not understand. But they are in no worse position than about 90 per cent. of the people of this country, so there is nothing much in that. The Attorney-General said that the Poles were foreign people whom we could not put under our own military law. Let us think for a moment of the position of the British Army. In the Levant, for instance, it was difficult to discover a British "other rank" who spoke English. There were Greeks, Maltese, Cypriots, Austrians, and Germans. When I was in Cairo recently, it took me 25 minutes to discover a fellow-subject who understood what I said. We have never had the remotest difficulty, up to now, in applying, to a large number of people, British military law, in giving them orders, although I do not mean, by that, telling them to form fours. Now the right hon. and learned Gentleman says that we must apply an old and obscure law to these Poles, because some, although having been in this country for many years, cannot speak English.
We are asked to apply a law which is to be ascertained as at a date in 1945, but as has been pointed out several times, this is the law of a country which had been occupied by an enemy State for a good many years before that. Law should he something not dead, but living. You might as well seek to apply the law of the Holy Roman Empire as to apply that of Poland, which has had no real existence as a living body of law since 1940. We are asked to apply that law, and we are 390 told, incidentally, that there have been no complaints about it. Anybody who was in the last Parliament, and who followed those matters, had complaint after complaint after complaint both about the terms of that law and about the administration of it. I remember that Sir James Grigg, who would have merited the epithet of "tough," actually consented to several large bodies of Polish troops being removed from the Polish Army solely on account of the way in which they had been treated by this so-called Polish military law.
§ Mr. Zilliacus (Gateshead)
May I point out that the military law in question was the law of the Polish semi-Fascist dictatorship?
§ Mr. Pritt
I had that in mind, and I am glad that it has been mentioned. I remember one occasion when complaints about this law were so numerous that I was asked to call on the very courteous gentleman who was described as the Minister of Foreign Affairs of that thing described as a State. He received me with great courtesy, and he told me that if I put before him any complaint by any Polish soldier, he would produce for me within twenty-four hours a signed statement by that soldier repudiating the complaint. That is the law about which we are told there is no complaint, and we are asked to apply it now under the difficulties that have been pointed out by a great many hon. Members. With regard to the extent to which the British courts would test it, I respectfully agree with the Attorney-General that it is quite plain that you could try habeas corpus. It is plain you could try certiorari, but it is not an easy task to convince [Interruption.] Certiorari is a procedure whereby you can challenge and stop anything that is being done without jurisdiction, but in order to decide whether it is without jurisdiction or not, if you are dealing with a Clause that applies holus-bolus, you will find it very difficult indeed to discover whether it is within the jurisdiction or without, because it is so difficult to discover what the law is, and until you know what the law is, you cannot say whether a thing is outside it. That is not a conclusive objection, because the courts and lawyers do solve difficult problems. They would not be paid so much if they, did not do so.
391 The Attorney-General frightens us with armies of translators. Hundreds and hundreds of thousands of words were translated in the course of the war. Every message sent to the illegal underground in Poland from the Bayswater Government was translated by the Foreign Office before they censored it. There is no difficulty about translation. One need not be too slavish about it. One might find that it would be sufficient to apply large chunks of British military law. If you want to tell Polish soldiers the exact effect of the law about being out after 10 p.m., it might be difficult, but if you want to say "You will have trouble if you are not home by 10 p.m.", if he is a well-disciplined fellow, he will be home by 11 p.m., and it is quite as easy to apply the military law of England as it would be a translation of the Polish code. There is no serious difficulty about that.
I was a little perturbed by the Attorney-General on one point. I remember long years ago, when I was on the benches opposite, and a very distinguished gentleman used to occupy the office of Attorney-General, and used to make his explanations. One began by believing that thee could be an explanation; then the learned Attorney-General would give his explanation, and we did not realise it was one. There was one point in which the right hon. and learned Gentleman reminds me of his distinguished predecessor and that was when he suggested that the legality was very doubtful and was not decided in the recent case. The first point that shocks me is the doubt thrown on the legality of Polish forces recently. I should have thought there was no doubt. I think it was a great pity that anyone should have cast a doubt. If the legality is in doubt, why not get it all cleared up? Why have all this discussion at all? I feel, if there has been any doubt at all, that the learned Attorney-General has neglected his duty, and that when he had a clear opportunity he passed it by. I refuse to accept the story that we have heard about the habeas corpus procedure. The psychologist should come to the assistance of anyone who swallowed that tale. I think this matter should be dealt with. In a way it is an insult to the present Polish Government to treat the matter on any other basis than by saying that there is 392 justification for the existence of this body of people only as a collection of alien friends all dressed alike.
I agree with the Home Secretary that the real difficulty here is that these people have not some method of discipline. I want some form of legislation, not too objectionable and something which will not take too much occupation of public time. When the learned Attorney-General tells us that there are no constitutional objections, one can take comfort from the fact that he would not have said that, if he had heard the Debate. Therefore we can excuse him. They were made very plain by my hon. Friend the Member for Northampton (Mr. Paget). It is quite wrong for him to say that it is the same since 1940. In 1940 we passed legislation of the type we had passed before saying that if there are people in this country owing allegiance to another State, let them be withdrawn from the ordinary duties they owe to the law of this country and give it to the country to which they owe allegiance. Here you have alien friends in this country who may owe allegiance to the new State. We should not be discussing them if they did not. You are now legislating with regard to people who owe a duty to obey the laws of this country, and who for some months have been in a kind of legal vacuum. You are also legislating retrospectively. You are saying you are going to treat them legally until the Act comes into force, and you are applying a wholly new form of control with an Administrator who can apply whatever procedure he likes and do anything except hang them. Yet we are told this is not a constitutional innovation. I admire the hon. Member for Northampton. I think he was very scrupulous when he said, in effect, that this may be all right but that we must know what we are doing. I think his argument that this was a constitutional innovation was a very sound one.
I am all in favour of constitutional innovations, but I do object to being told by the Attorney-General that there is not one here. He ought to be very pleased that there is. I hesitated very much in trying to bring an intelligent mind to bear on the problem because I do not like lawyers' arguments at all. This Clause is bad, but no Clause on this difficult problem, can be very good. My own personal feeling—and I speak with a 393 certain degree of objectivity in the matter —is that the right hon. Gentleman should give up this objectionable idea of applying this objectionable law, which nobody understands and lay down what law is to be applied in an Order in Council. We have passed laws by Orders in Council more complicated than that and I feel it would be workable if that could be done. I apologise for having detained the House so long on a matter of law but it is also a matter of importance.
§ The Parliamentary Secretary to the Treasury (Mr. William Whiteley)
rose in his place, and claimed to move, "That the Question be now put."
§ Question put, "That the Question be now put."
§ The House proceeded to a Division.
§ Mr. Speaker
The hon. Member places an Order Paper on his head. Last night I ruled that that was not in Order.
§ Mr. Warbey
(seated and covered): On a point of Order, Mr. Speaker. When the discussion on this new Clause was opened, you said that you intended to call the Amendments. Those Amendments have not been called and they raise important points of principle.
§ Mr. Speaker
I can correct the hon. Member. I cannot call the Amendments until the Clause has been read a Second time. Then, naturally, I call the first Amendment.
§ Mr. Driberg (seated and covered)
On a point of Order. We were promised a reply by the Secretary of State for War during this Debate.
§ The House divided: Ayes, 169; Noes, 53.395
|Division No. 103.]||AYES.||[11.53 p.m.|
|Allen, A. C. (Bosworth)||Fletcher, E, G. M. (Islington, E.)||McKinlay, A. S.|
|Anderson, A. (Motherwell)||Follick, M.||McLeavy, F.|
|Awbery, S, S.||Forman, J. C.||MacMillan, M. K. (Western Isles)|
|Balfour, A.||Fraser, T. (Hamilton)||Macpherson, T. (Romford)|
|Bechervaise, A. E.||Freeman, Maj. J (Watford)||Mathers, G.|
|Bellenger, Rt. Hon. F. J||Gibson, C. W.||Mitchison, G. R.|
|Blackburn, A. R.||Gilzean, A.||Monslow, W.|
|Blyton, W. R.||Glanville, J. E. (Consett)||Morgan, Dr. H. B.|
|Boardman, H.||Greenwood, Rt. Hon. A. (Wakefield)||Morley, R.|
|Bottomley, A. G.||Greenwood, A. W. J. (Heywood)||Morris, P. (Swansea, W.)|
|Bowden, Flg.-Offr. H. W.||Griffiths, D. (Rother Valley)||Moyle, A.|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Griffiths, W. D. (Moss Side)||Nally, W.|
|Brook, D. (Halifax)||Guest, Dr. L. Haden||Neal, H. (Claycross)|
|Brown, T. J. (Ince)||Haire, John E. (Wycombe)||Nichol, Mrs. M. E. (Bradford, N.)|
|Buchanan, G.||Hall, W. G.||Nicholls, H. R. (Stratford)|
|Butler, H. W. (Hackney, S.)||Hamilton, Lieut. -Col. R.||Noel-Baker, Capt. F. E. (Brentford)|
|Carmichael, James||Hannan, W. (Maryhill)||Oliver, G. H.|
|Champion, A. J.||Hastings, Dr. Somerville||Paget, R. T.|
|Cobb, F. A.||Herbison, Miss M.||Paton, Mrs. F. (Rushcliffe)|
|Collindridge, F.||Holman, P.||Pearson, A.|
|Collins, V. J.||House, G.||Peart, Capt. T. F.|
|Colman, Miss G. M.||Hoy, J.||Plaits-Mills, J. F. F.|
|Comyns, Dr. L.||Hubbard, T.||Popplewell, E.|
|Corbet, Mrs. F. K. (Camb'well, N.W.)||Hughes, Hector (Aberdeen, N.)||Porter, G. (Leeds)|
|Corlett, Dr. J.||Hutchinson, H. L. (Rusholme)||Pritt, D. N.|
|Crawley, A.||Hynd, J. B. (Attercliffe)||Pursey, Cmdr. H.|
|Daggar, G.||Jeger, G. (Winchester)||Randall, H. E.|
|Davies, Edward (Burslem)||Jones, D. T. (Hartlepools)||Ranger, J.|
|Davies, S. O. (Merthyr)||Jones, Elwyn (Plaistow)||Reid, T. (Swindon)|
|Deer, G.||Jones, P. Asterley (Hitchin)||Ridealgh, Mrs. M.|
|Delargy, H. J.||Keenan, W.||Robens, A.|
|Diamond, J.||Kenyon, C.||Roberts, Goronwy (Caernarvonshire)|
|Dobbie, W.||Key, C W.||Ross, William (Kilmarnock)|
|Dugdale, J. (W. Bromwich)||King, E. M.||Royle, C.|
|Dumpleton, C. W.||Kirby, B. V.||Sargood, R.|
|Dye, S.||Kirkwood, D.||Segal, Dr. S.|
|Ede, Rt. Hon. J. C.||Lavers, S.||Shackleton, Wing-Cdr. E. A. A.|
|Edelman M||Leonard, W.||Sharp, Granville|
|Edwards, John (Blackburn)||Levy, B. W.||Shawcross, Rt. Hn. Sir H. (St. Helens)|
|Edwards, W. J. (Whitechapel)||Logan, D. G.||Silverman, S. S. (Nelson)|
|Evans, John (Ogmore)||Longden, F||Skeffington, A. M.|
|Evans, S. N. (Wednesbury)||Mack, J. D.||Smith, S. H, (Hull, S.W.)|
|Ewart, R.||McKay, J. (Wallsend)||Snow, Capt. J. W.|
|Fairhurst, F.||Mackay, R. W. G. (Hull, N.W.)||Sorensen, R. W.|
|Soskice, Maj. Sir F||Turner-Samuels, M.||Willey, O. G. (Cleveland)|
|Sparks, J. A.||Ungoed-Thomas, L.||Williams, D. J. (Neath)|
|Stamford, W||Vernon, Maj. W. F.||Williams, J. L. (Kelvingrove)|
|Steele, T.||Wallace, H. W. (Walthamslow, E.)||Williams, W. R. (Heston)|
|Stewart, Michael (Fulham, E.)||Watkins, T. E.||Willis, E.|
|Taylor, H. B. (Mansfield)||Watson, W. M.||Wilson, J. H.|
|Taylor, R. J. (Morpeth)||Wells, W. T. (Walsall)||Woodburn, A|
|Thomat, D. E. (Aberdare)||West, D. G.||Yates, V. F.|
|Thomas, Ivor (Keighley)||White, C. F. (Derbyshire, W.)||Younger, Hon. Kennett|
|Thomas, I. O. (Wrekin)||White, H. (Derbyshire, N.E.)|
|Thorneycroft, Harry (Clayton)||Whiteley, Rt. Hon. W.|
|Timmons, J.||Wigg, Col. G. E.||TELLERS FOR THE AYES:|
|Titterington, M. F||Witkins, W. A.||Mr. Joseph Henderson and|
|Tolley, L.||Willey, F. T. (Sunderland)||Mr. Simmons.|
|Agnew, Cmdr. P. G||Gage, C.||Orr-Ewing, I. L.|
|Astor, Hon. M.||Gomme-Duncan, Col. A. G||Peake, Rt. Hon. O.|
|Barlow, Sir J.||Hogg, Hon. Q.||Price-White, Lt.-Col. D|
|Birch, Nigel||Hollis, M. C.||Ramsay, Maj. S|
|Bossom, A. C.||Keeling, E. H.||Roberts, Emrys (Merioneth)|
|Boyd-Carpenter, J. A.||Legge-Bourke, Maj. E. A. H||Smithers, Sir W.|
|Buchan-Hepburn. P. G. T||Lindsay, M. (Solihull)||Stoddart-Scott, Col. M.|
|Bullock, Capt M.||Lloyd, Selwyn (Wirral)||Strauss, H. G. (English Universities)|
|Challen, C.||McKie, J. H. (Galloway)||Stuart, Rt. Hon. J. (Moray)|
|Conant, Maj. R. J. E.||Macmillan, Rt. Hon. Harold (Bromley)||Studholme, H. G.|
|Corbett, Lieut.-Col. U. (Ludlow)||Macpherson, Maj. N. (Dumfries)||Taylor, Vice-Adm. E. A. (P'dd't'n, S.)|
|Crosthwaite-Eyre, Col. O E||Manningham-Buller, R. E.||Thorp, Lt.-Col. R. A. F|
|Crowder, Capt. John E||Marples, A. E.||Vane, W. M. F.|
|Darling, Sir W. Y.||Marsden, Capt. A||Wheatley, Colonel M. J.|
|Drayson, G. B.||Mcdlicott, F.||White, J. B. (Canterbury)|
|Foster, J. G. (Northwich)||Molson, A. H. E.||Winterton, Rt. Hon. Earl|
|Fox, Sir G.||Morrison, Rt. Hon. W. S. (Cirencester)|
|Fraser, Maj. H. C. P. (Stone)||Neven-Spence, Sir B.||TELLERS FOR THE NOES:|
|Fyfe, Rt. Hon. Sir D. P M||Noble, Comdr. A. H. P.||Mr. Mikardo and Major Bramall.|
Question, "That the Clause be read a Second time," put accordingly, and agreed to.
§ 12 m.
§ Mr. Bing
I beg to move, as an Amendment to the proposed Clause, in line 8, to leave out from "administration" to the second "and," in line 10, and to insert instead thereof:such rules as may be made by His Majesty by Order in Council.The object of the Amendment is thus to substitute Rules made by Order in Council forthe rules in force as to those matters under the law of Poland on the 1st day of January. 1945"—the proposal in the new Clause.
If there is one thing which is clear about this Clause—and there are a great many things which are not at all clear—it is that it seeks to enforce the law of what I might call the Lublin Polish Government—that is the Government which at that time was at Lublin and known by that name. I am sorry to see that when we come to this important point the Attorney-General does not seem to be on the Front Bench. Perhaps he does not think that this is a matter for his attention. I am glad to see that he is now coming and perhaps he will give the matter his attention. I would have thought that that was one point which would have been 396 abundantly clear to the Attorney-General. Perhaps it was so clear to him that he skated over it and said that that was a matter for the courts to decide, but he failed to add that there is only one direction in which the courts could possibly decide. It is so clear that I did not seek to fortify myself with any particular references in order to argue the point. I thought it so well established as a point of international law that there was no need to argue it.
May I say to the Attorney-General that surely it is quite clear that once a Government has been recognised, whatever we may think of the law it has exercised in the past, that law becomes the law of that country. I would remind the Attorney-General of an American case of which I have a note and which has been developed and has now been accepted in a line of English cases. The American Chief Justice said this:If the party seeking to dislodge the existing government succeeds "—that is exactly what happened in regard to the present Warsaw Government—and the independence of the Government it has set up is recognised"—that is exactly what happened—then the acts of such a Government from the commencement of its existence are regarded as those of an independent nation.397 So that the law which we are asked to enforce by this Clause is not the law of Poland which was enforced in this country at the end of 1944, but is quite clearly and definitely—I do not think the Attorney-General will contradict me—the law of Poland as administered by the Lublin Government in a particularly confused period, 1st January, 1945.
But suppose for a moment that I am wrong. Then the Attorney-General and the Home Secretary are in much greater difficulties, because what was the Polish Government in power on 1st January, 1945, in this country? What were the laws it was making? It is a most unfortunate day to choose. May I recall to the House what the right hon. Member for Woodford (Mr. Churchill) said about that particular Government which came into power just about that date? The right hon. Gentleman said, in the Debate of 15th December, that this Government had been:….entirely reconstituted in a form which in some respects I certainly am not able to applaud."—[OFFICIAL REPORT, 15th December, 1944; Vol. 406, c. 1481.]Although the right hon. Gentleman the Member for Woodford was not able to applaud it, we are now going to apply its laws after some two years have elapsed. What were the laws in force as to discipline and internal administration of Poland at that date? I am sorry that the hon. Member for Queen's University of Belfast (Professor Savory) is not here, because he would be better able to advise the House on the actual details of Polish law than I am, but we can discover the main principles by referring to the Treaty mentioned in the first Clause of this Bill. I call the attention of the Attorney-General to Article 1 which is part of the law of Poland in force, according to his argument, on 1st January, 1945. It says:Polish Armed Forces (comprising land, air and sea forces) shall be organised and employed under British Command, in its character as the Allied High Command, as the Armed Forces of the Republic of Poland allied to the United Kingdom.Then the Treaty gives details of the rules these people are to obey under Polish law. If one looks at Appendix II, Article 4, one sees:The soldiers of the Polish Land Forces will take an oath of allegiance to the Polish Republic.398 Can the Attorney-General tell us how this rule, which was in force on 1st January, 1945, is to be enforced, and perhaps he will tell us to whom these people owe allegiance? Quite clearly it is not to the British Crown, because the rules in force on 1st January, 1945, expressly exclude that. They cannot own allegiance to the London Polish Government, because that Government has ceased to exist. If the Attorney-General's interpretation of the law is correct, they cannot owe allegiance to the present Polish Government because on that date, according to his argument, it had not come into being.
We make a grave mistake if we regard this matter on a purely legalistic basis. We are concerned much more with administration and I will put one or two difficulties about administration. First, the laws of Poland prescribe certain ranks which will be held in the Polish Forces in times of war. We are now in times of peace, but we are giving Polish soldiers, unlike British troops, the right to retain their wartime rank in times of peace. That is not satisfactory. We have had at one time or another discussions about the propriety of income tax reductions for people who work overtime, but according to this Clause, provided these people work, as it were, sufficient under-time, they do not have to pay income tax at all. For under Polish law, not one of them will be liable to English income tax.
The present position of the Polish Forces is that, so long as they do not go into the Resettlement Corps and do not do any work, they do not pay any Income Tax. Once they come under British law in the Polish Resettlement Corps they have to pay Income Tax. It seems to me to be rather undesirable we should offer them this inducement not to enter the Resettlement Corps.
Perhaps the learned Attorney-General will tell us what really are the Administrator's powers under the law of Poland. We do not know what they are. We know there are rather peculiar rules which deal with lunacy among the Polish troops, and if one looks at the various cases which have arisen one sometimes finds they are cases of people who are not charged with any crime. but are just certified as insane by some Polish officer and thus can be held indefinitely. This is a matter of some importance and I would mention one 399 case which seems to make it of considerable importance. At the 5th Polish Military Hospital until the end of January this year there was a certain Dr. Dering employed as the surgeon and physician of that hospital. I think it is generally agreed he was exactly the same person who was the chief medical officer at the Auschwitz concentration camp. He remained in that position till the end of hostilities, and he then proceeded to join the Polish Army and was appointed as physician in charge of this hospital. That is a man who was able, when habeas corpus cases come along to give these psychiatrist reports and to say that a man is not fit to plead. That is a matter which requires looking into.
What is the administrative position? As I understand it, the whole difficulty of the learned Attorney-General is that it would be too much trouble to translate and make a code in English, but it seems to me that if this House is going to prescribe a law we should at least know what that law is, even though it may involve us in some little trouble in setting out what it is. If the Administrator is going to know what it is, or if the English courts are going to interpret it, then surely they are at least entitled to a translation. Would it not be better to make a translation in the first place?
In conclusion, there are two points I would like to make. Does the learned Attorney-General know what the law of Poland is at the present moment? In this case he ought to tell us whether he considers it to be the law of the present Polish Government, which I should think it most clearly is. In that case I think he should pause, for what may have been a very valuable code during the advance through Poland—it probably allows for commissars—might now be out of place. If, on the other hand, it is the law of Poland that was in force on 1st January, 1945, it converts these unfortunate persons into soldiers who owe allegiance to no one, and we shall have made them into a kind of statutory bandit or pirate at law. That does not seem to me to be the best way for this House to legislate. I do hope that this particular provision will be reconsidered very thoroughly, and some steps taken to effect an alteration in this Clause which, in my submission, is in its present form quite meaningless and purposeless.
§ 12.15 a.m.
§ Major Bramall (Bexley)
I beg to second the Amendment.
I am at some disadvantage in speaking immediately after my hon. Friend the Member for Hornchurch (Mr. Bing), who has proposed the Amendment with his customary brilliance. I also feel at a disadvantage in not being a lawyer because, as my hon. and learned Friend the Member for North Hammersmith (Mr. Pritt) remarked, this is a lawyers' benefit this evening.
But I think we can have a look at this Amendment, and see how it is designed to improve this Clause without going too deeply into the legal technicalities. We have some advantage in that we have already heard the answers of the learned Attorney-General, and of the Home Secretary, on some of the points which are raised in this Amendment, on the Second Reading of this Clause. Two points struck me particularly. One was the fact that the Home Secretary stressed the difficulties of the situation, and its unprecedented nature. But I would tell him, with great respect, that however difficult a situation may be, that is no excuse for a Minister coming here and putting forward a solution which obviously is totally inadequate. The fact that the case is difficult does not, to my mind, constitute an adequate excuse for promulgating a law which is in itself bad, and which in future will create even greater difficulty. The second point was that it is necessary to have some law governing the Polish Forces which they can understand; and with the reservations made by the hon. and learned Member for North Hammersmith and the hon. Member for Oldham (Mr. Hale) that that is a privilege denied to a great many people who come under our law, I would say that there is an equally important principle to be observed, namely, that this law which we enact or affirm for these Polish Forces should be law in accord with our canons of justice. Since we are enacting or affirming it by British Statute, it should be in accord with the British canons of law. I know nothing about Polish law. The law we are here enacting or affirming may be perfectly unexceptional, but, on the other hand, as has been said by the hon. and learned Member for North Hammersmith, from what has been heard in the past there appear to have been considerable blemishes. One has heard 401 stories that the law and administration of Polish military courts has been used for specific political purposes directly contrary to those which the Government which is moving this Clause, desires to effect; that Polish military discipline has been used for the purpose of deterring people from going back to Poland, for punishing people who have expressed a desire to take advantage of the facilities which are being given to them to go back. There seems to me in this case to be a very definite legal difficulty. Among the things which are part of any body of law are the attributes of allegiance which the subject owes. That matter has been touched upon more than once in this Debate. The fact is, that these people at present owe no allegiance to any known sovereignty. But as the law of Poland stood on 1st January, 1945, as it was enacted and enforced by the London Government, there is no doubt that anyone who owed allegiance to the Lublin Government was a traitor to the London Government. It is equally true that anyone at present who owes allegiance to the so-called London Government is a traitor in the eyes of the Government of Warsaw. Therefore, we are saying, since we are crystallising the law as it was on 1st January, 1945, that these people are, in fact, traitors, in that they owe allegiance to a body which is now the Government of their country, and which is recognised by His Majesty's Government. It seems to me that we are putting them into an extremely difficult position in that respect.
The second point in which this law is extremely unsatisfactory is that it is a dead law to which we refer when we say that it is the Polish law of a particular date which shall be enforced by the courts, and enforced under British Statute. I am not a lawyer, and, therefore, I am not in a position to check my argument here, but it appears to me as a layman, as a mere plain man, that since we are enforcing Polish law on a particular day, that law can never be amended, however unsatisfactory it may show itself to be in the conditions which hereafter arise in this Force. There is no means by which the law can be changed, because the only law which can be legally enforced in the Polish Corps is the law on a particular day in the past.
The final point which I should like to touch upon is that of the international repercussions which will result from this 402 Clause we are trying to enact. I am certain hon. Members do not want to put us in a position where we are intimidated by any foreign Power or government to pass into law something we consider not to be right. But when we do something in this House which is regarded by a foreign country as a definite affront, we should take notice of it. The Polish Government regard the passage in a British Bill which proposes to enact as the law of this country Polish law at a time when that Government was not even in existence, with great disaproval. Furthermore, it proposes that we shall say that Forces which have been declared by a Polish Government not to be the Forces of the Republic of Poland, are in fact, Forces of that Republic. We say that we disregard the action of the Republic of Poland' in disavowing these Forces, and furthermore, we say that we recognise law which is not the law of the Government of Poland at the present time. We recognise law of the Government of Poland which preceded this Government, and which has been disavowed by this Government. Therefore, I suggest to the House that the only way in which we can get round this difficulty is to find some easily attainable means of enforcing discipline among these people. I suggest that an Order in Council shall be made which will enact any law that is appropriate, and that law might well be this Polish law. But if an Order in Council is to be enacted, this Polish law must be gone through, and we must satisfy ourselves that this particular section of Polish law it is proposed to enact is in accordance with British canons of justice; that there is nothing exceptional in it, and we must be prepared to defend it to this House. Without causing any undue inconveniences—and I think that the difficulties of translation are exaggerated—by suggesting we are going to leave these people without discipline and control, I claim this would provide a means of carrying out the intention of the Government without trespassing against the wishes of a foreign Power and without offending against things which they consider to be fundamental.
§ The Attorney-General
The points which have been raised by the hon. Member for Hornchurch (Mr. Bing) and the hon. and gallant Member for Bexley 403 (Major Bramall) are very interesting, and very subtle, but they are exceedingly academic at the same time. I would ask the House to remember that all that we are seeking to do here is to continue, for a further seven months, or so, that which has been in practical operation for the past seven years, subject to this great safeguard, that the whole Polish force is being brought under British control and British command.
§ The Attorney-General
Under the Clause as it now stands, members of this force will owe obedience to the British administrator. Let me make that perfectly clear.
It will be under the command of the British administrator, who will be a British subject appointed by the Secretary of State and who will, in turn, be responsible to this House in regard to him. They will owe local allegiance to the British Crown. They will be bound in matters of administration and discipline by the law of Poland, as sustained by the Polish Government recognised by His Majesty's Government on 1st January, 1945. No question of taking any oath of allegiance to the Polish Republic now arises. That obligation was imposed on Polish soldiers at the time of their entry into the Polish Forces. New members are not now being recruited into these forces, and that obligation is not a recurring one. Polish procedural law will have no application in these matters. Subsection (3) of this Clause vests the jurisdiction to try cases in the administrator as the commanding officer of these forces, and his delegates.
We could deal with this matter by promulgating a code of law by an Order in Council. That would be a possible course. If we took that course Members will realise that we should, in practice, have to reimpose on the Polish forces substantially the same body of law which is contemplated by this Clause, to which they are used and with the rules of which they are familiar. We must face the practical necessities and realities of this extraordinary situation. Here is a Polish force which exists—we cannot shut our eyes to that—a force which, so long as it continues to exist—and it will not continue to exist for long—must continue to 404 be administered and disciplined. It has hitherto been administered and disciplined under the law of Poland, substantially as it was in 1945. I beg Members to think that the practical commonsense thing is to say, "During demobilisation, for the few months that this force will remain in existence, let us continue to operate the code which has applied to them hitherto, subject to the important safeguard that now they are under the command of a British administrator, a person who can remit penalties if they are improper, who has a responsibility to the Secretary of State and, through the Secretary of State, to the Government."
§ Mr. Scollan
What is the point of saying it is only temporary when the right hon. and learned Gentleman cannot tell us how long it will last? It may last for many years.
§ The Attorney - General
This House will have very adequate and ready control over the policy of His Majesty's Government in regard to the existence of this force. Some members of the force will go into the Resettlement Corps, and become members of the British Army. Some will go back to Poland. As soon as they have been sorted out—and the process is going forward now, at a very rapid rate—this force will cease to exist. This Bill deals with transitional matters, and this Clause deals with a transitional matter.
§ 12.30 a.m.
§ Mr. J. Foster
This Amendment has one advantage in that it eliminates one reference to the law of Poland as it was on 1st January, 1945. The hon. Member for Hornchurch (Mr. Bing) asked what was the law of Poland on 1st January, 1945? I am afraid I shall have to take the House into a rather subtle argument which, in my submission, is, nevertheless, a sound one, as to what the law of Poland was on 1st January, 1945, according to our notions now. It may sound a paradox to a layman, but the law in force in Poland on 1st January, 1945, which we would have said was in force in 1945, is not the law of Poland in force in 1945. It sounds absurd, but in my submission it is so. In English law, a question of foreign law is a question of fact, and there have been cases where an English court has found that French law, for instance, founded on 405 Ist March was so and so, and on 1st June has found that exactly the same point in French law was exactly the opposite. That is the first thing. It is a matter of fact.
Let us take the case of a couple coming from France and being married here, and then, later, there being proceedings of nullity. Evidence is given on the question of fact by French lawyers. It is said that this couple did not have the consent of their parents. In French law, French people who marry abroad and do not have the consent of their parents are not married in accordance with French law and hence, the court would say, on 1st January, 1910, that the people were married in England, and that they had not the capacity to be married, because, according to French law, the marriage was nullified. The French law would give a case from the Court of Cassation which is clear on the point. Then, the next year, the Court of Cassation reverses its decision. Take, then, the case of a French couple, married on exactly the same date as the other couple, coming before an English court. The evidence is given about the Court of Cassation having reversed its decision. The question is exactly the same: What was French law on 1st January, 1910? The evidence that is given on French law is that French law has changed. The English court does not say, "What did we think the law of France was on 1st January, 1910?" The English courts are not allowed to do that. They have to say, "What is the evidence of French lawyers now as to what the French law on 1st January, 1910, was?" It is the opposite.
That is the fallacy of this Clause. It is a matter of applying international law. It is a well-known problem, and the technical name is "the classification of law in time." As one would expect, many learned books have been written by German lawyers on it. What happens now? An English court has to decide what was the law of Poland on 1st January, 1945. The Clause says so. The only evidence we can have is the evidence of Polish lawyers. Their evidence must be that the law on 1st January, 1945, is the law which the present Polish law says was in force on 1st January, 1945. The Polish Government, like many refugee Governments, or non-refugee Govern- 406 ments that sprung up in countries that were occupied, were faced with a very difficult legal problem. There had been laws passed in, say, Norway, by the refugee Government and laws passed by the Norwegian Quisling Government, and the Norwegian Government are faced with a difficulty in that they cannot wipe out the whole of the laws passed by the Quisling Government, because that would make legal nonsense of such things as marriages, births, and so on. What they say is that, during the German occupation, this is what the law of Norway was, and they supplement the law passed by the refugee Government by adding a few Quisling laws and one of their own, and they say, not what is the law since the liberation only, but they add that the law of Norway since the occupation was so-and-so.
The Polish Government have done the same thing. They were faced with a more difficult legal problem. There had been German laws of the Gouvernement General, and they say that in 1945 the Polish law was so-and-so. Let me give one more illustration. The Vichy Government passed many laws in France. For instance, they passed a company law. In 1945, the English courts, faced with the question of what was French company law, would have said, "It is French law up to 1940, the day of the occupation by the Germans, or perhaps 1942, the date of the occupation of the unoccupied zone, plus any laws passed by the De Gaulle Government when it was recognised." But in 1947, if they were asked what was the French law in 1945, there would be a very different answer because the French lawyers would have said that the De Gaulle Government did not recognise the Vichy company law but that since De Gaulle went back they have incorporated the Vichy company law. Therefore, the French lawyers in 1947 would be telling the English court what the law was in 1945, and that would be different from what the English court would have been told by the French court in 1945.
That is what is happening here. There can be no other answer to the question in an English court today. Suppose a man complains that he has been imprisoned under the Provisional Government of 1945. If he does he will have an unanswerable argument when he says that the only Polish law in 1945 is the law which the present Polish Govern- 407 ment say was the law in 1945. That touches in the point raised by the hon. Member who spoke before the Attorney General that that law cannot be changed. But it can be changed because the sovereign body in Poland is the present Government and it is they who decide not only what the law is now, but what it was before. We cannot freeze the law as it was in 1945, and then say in 1947 that however much the Poles have changed it, we cannot recognise it. We have got to recognise it, unless the law is altered. Therefore, I do submit that this Clause as it is today cannot work and for that reason it would appear to be desirable to accept the Amendment.
§ Mr. Piratin (Mile End)
I hope the learned Attorney-General and those responsible on the Government Front Bench will accept the Amendment. I am impressed by the argument of the hon. Member for Northwich (Mr. J. Foster). He reminds me of a joke which was current when I was a boy. You asked your friend what was the name of the Prime Minister in 1906. If you knew your history you would remember that it might have been Sir Henry Campbell-Bannerman. The answer, however, was "No, it was the right hon. Gentleman the Member for Limehouse" (Mr. Attlee). I think that is the essence of the argument put by the hon. Member for Northwich, and it is a very sound argument why the learned Attorney-General should accept the Amendment. I did not get up to make jokes but to make two brief points which in some cases have been referred to.
One point that occurs to me is that the learned Attorney-General addressed himself to the question put by the hon. and gallant Member for Bexley (Major Bramall), who, I think, was the first person to raise the matter, namely, the international consequences of what is involved. We have heard a lot from several hon. Members on the judicial and legal aspects of the question on which i am not qualified to speak. To me, this is a matter of common sense and politics. This is a political establishment. I put this point that this is an additional insult to the Bill to which we saw fit to give a Committee reading last week. Hon. Members may recall that the Minister was asked why there had been no consultation with the present Polish Government. They 408 would have liked to have been consulted about the character of the Bill. But the Minister did not see fit to answer the point I made. Here, on this occasion, we understand, and as the hon. Member for Bexley has said, the Polish Embassy have intervened on the matter, have stated that they do not agree that this Clause should go through in the way in which it is proposed and that they also have indicated that they would hold themselves free to take such steps as they see fit, whatever that may mean. It may mean that the matter may be raised with the United Nations organisation. It may mean that it may be taken up through some other diplomatic channels, but, surely it is a matter which should be given attention and no hon. Member on the Front Bench tonight has yet addressed himself to this question and I think certainly hon. Members on this side would like to hear an answer to this question.
What is the attitude? Are we still to Haunt the interests and the sovereignty of the Warsaw Government and are we still to go on as though no such Government existed? The other point I have in mind is that I remember being told when we were discussing it on the Committee stage that we are going to help these Poles in this country to find their feet again. Expressions have been used about their developing towards the British way of life. I put it that what we are saying is that these Poles, a large number of whom do not want to face the present in this country or the future in Poland, are being helped to remain in the past by still being provided with the law of the old prewar Polish Government. I had the impression that that was the last thing we wanted to do. The impression I had was that we wanted to show them the so-called British way of life, if we could not encourage them to return to Poland. Yet, on the contrary, when we come to this particular Clause, the Minister is endeavouring to secure for them that they should live in the past, as some of them still desire to do. I hope, therefore, that further consideration will be given to this and that this Amendment, which is meant to help the Clause and not to obstruct it, will be accepted, and that the whole of the Bill will be improved thereby.
§ The Attorney-General
I wonder if the House will allow me to say a few words. I do not want to follow the hon. Member 409 into the political aspects of this matter, but I do want to say something in relation to the point raised by the hon. Member for Northwich (Mr. J. Foster). No one could refrain from being impressed by the extreme subtlety of his argument, but I am bound to say that I entirely reject it as being in any way applicable to the provisions of this Clause in this matter. The position is really exceedingly simple. The court, the officer, the person exercising the functions delegated from the Minister would have to ascertain, whether by the rules in force on 1st January, 1945, it was an offence, for instance, to disobey an order which had been given by a superior officer. Evidence would be given by lawyers as to that fact. Lawyers might differ about it; they do even in England now and again, but there really would be no difficulty on the part of the court, or the person exercising the delegated powers, in ascertaining the true facts. All that the court, or officer, would have to do would be to consider the position as it existed on 1st January, 1945. The officer puts himself in that position, he ascertains whether it was an offence to disobey an order at that time, and, if it was, he imposes the penalty which was provided for at that time. There is no difficulty about the matter whatever, and there is no reason to go into the very subtle academical reasoning advanced by the hon. Member for Northwich.
§ Major Bramall
Does not the Clause say, "Under the law of Poland"? Would not all these people, the administrator, the officer, and so on, have to ask themselves what would have been their position under the law of Poland? In view of that, surely, the arguments of the hon. Member for Northwich apply, that they would have had to find what was the law of Poland. Is it not true, as he said, that that can only be found by reference to what the Government of Poland decided what the law of Poland was on that date.
§ 12.45 a.m.
§ Mr. James Callaghan
I think it is a pity that the Attorney-General did not wait before intervening since now he will have to request the leave of the House to speak yet a third time in order to 410 clear up the small point I wish to make. I am rather impressed by the arguments which have been put by supporters of the Amendment up to the moment. I think, however, there is one consideration which would lead me to give my vote to the Attorney-General. That is if, in fact, this existing corpus of land law which has gone on for seven years is to continue for a period of only seven further months. That was what I understood the Attorney-General to say, but the point I am still not quite clear about, and upon which I should like an answer from the right hon. and learned Gentleman, is why this is only to continue for a short period of seven months.
When the Attorney-General went on to explain why, he said it could not continue to exist because of rapid demobilisation which will mean that there will be one of two courses open to these men. Either they will return to Poland or they will go into the resettlement corps. I may be very stupid, but I have tried to follow this, and I thought we were dealing in this new Clause with the third class of people who were neither going back to Poland, nor going into the resettlement corps. That, as I understand it, was the Home Secretary's argument during the Second Reading Debate. If, in fact, I am not being so stupid as I think I am, why is it that this is to last for a period of only seven months? May I have an assurance that in fact it will last for a period of only seven months, in which case I am inclined to give it? But if, on the other hand, this Clause is dealing with this—I thought—rather worthless crowd of people who are neither willing to work here, according to the Home Secretary, nor prepared to return to Poland, then should say that if we are going to get tough with them we had better start "getting tough" in this direction—to use the Home Secretary's own words.
How can we be sure that they are not going to take advantage of the situation, if indeed they have taken advantage of it so far, to go on in the present vacuum between the past and the present which seems to exist under this Clause? How are we to be sure that they are not going on under that, for so long as we are prepared to pay them their living expenses? In that case it seems to me that for an indefinite period, and not 411 for seven months, these men will be living under this code of law about which the lawyers do not seem able to agree. In those circumstances, if they are to go on living in this country for an indefinite period, then they must come under something like this Amendment. I do not care whether it is this particular Amendment or not, but they must come under a body of living law, to which we can have access and reference, and which they can understand if they apply themselves to it.
§ Mr. Driberg
I have listened with great interest and respect to the speeches of my right hon. and learned Friend the Attorney-General and various other eminent constitutional and international lawyers; but, like by hon. and gallant Friend the Member for Bexley (Major Bramall), I am not a constitutional or any other kind of lawyer myself. I am a simple back-bench legislator trying to find my way through a legalistic labyrinth from which the learned Attorney has done little to rescue us by lolling outside the labyrinth and saying, "There ain't no maze—there's no such creature as the Minotaur." Really I do think that he and the Home Secretary between them—although I must pay a tribute to the patience and good humour which the Home Secretary has applied to this very difficult problem—have put the House in rather a tangle.
Furthermore, it is not only the House but I think that the present Polish Government does not know what is happening here and what is in the mind of my right hon. Friend. The Attorney-General will know as well as I do the contents of the Note which was forwarded by the Polish Government two or three days ago to the Foreign Office, and he will be aware that the second specific complaint in that Note was of the infringement of Polish sovereign rights in that the former Polish armed force under British command, recognised as an independent allied authority, will have conferred upon it "the right to impose punishment on Polish citizens in accordance with Polish law." Stated simply like that, without any definition, it would seem that the present Polish Government imagines that the code of law which is to be applied in that part of the Clause which we are seeking to amend is the 412 present Polish law. I do not think that that can be the case, for reasons advanced by my hon. Friend the Member for Hornchurch (Mr. Bing), but I have not heard the Attorney-General reply whether that is so or not.
§ Mr. Scollan
On that one point, is it not the case that the present Polish Government have not changed all the laws of Poland since 1939, and consequently they must come under some of the present laws of Poland?
§ Mr. Driberg
Yes, some, but, as my hon. Friend will agree, that kind of half-Way house is rather unsatisfactory, for one does not know where one is. At any rate I agree with the hon. Member for Bexley that it is unfortunate that this step should be taken at this moment, when, at last, trade negotiations are about to be opened up with the new Polish Government, after all the long months of obstruction by the Foreign Office.
There are several questions which the Attorney-General has not yet answered. I do not suppose he will ever answer them if he continues talking to the Home Secretary instead of listening to some of the questions which we respectfully address toward him.
§ Mr. Driberg
There are two small questions which I want to address to him and which I hope he will answer. The first was originally raised by my hon. Friend the Member for Oldham (Mr. Hale) at an earlier stage, but is still relevant on this Amendment. It is, how is it that the Administrator is to be "experienced in the administration of British military law," and why, since it is specifically stated that he will deal with Polish law, is he not to have experience of Polish law? It is not British law which he will be called upon to administer, but possibly an obsolete Polish code. Can my right hon. and learned Friend answer that?
§ Mr. Driberg
Can he also answer the point about Income Tax which was raised by my hon. Friend the Member for Horn-church? That seems to me to be an important point. The part of the Clause, which we are seeking at present to amend, seems to me most particularly to tend 413 towards the building up, despite what the learned Attorney-General has said, of some semi-permanent, coherent, necessarily indigestible alien bloc within our society. I think it is relevant to this part of the Clause to examine the state of mind in which some of these people are at present, in relation to the legislation which we are now discussing. Since the Second Reading of the Bill, various Polish newspapers, published in this country for the Polish troops, have commented at some length on the speeches on the Bill made by my right hon. Friend the Home Secretary. This is particularly relevant to the idea that we should impose an alien legal code in this country, because the Home Secretary expressed the hope that those who did not choose to go home to Poland would become assimilated into the life of this country. Yet on 14th February one newspaper, the "Polish Word," says, rather scornfully:Mr. Chuter Ede expressed the hope that Poles who remain in Great Britain will be assimilated into the British community and will acquire the British way of life…. We do not intend to consider ourselves as candidates for de-nationalisation. We do not consider our sojourn in Great Britain final and permanent. We believe that conditions in Poland will undergo—within a time difficult to define at present—such a change that we shall be able to return to our motherland.The "Polish Daily and Soldier's Daily" of 15th February—
§ Mr. Driberg
Yes, published in this country on paper allocated by the British Government and financed by the British taxpayer—said:Polish emigration is and must be fundamentally of a political character; and because it is a political emigration conditions prevailing in Poland must influence its existence. This is particularly so on the question of the return of the emigration to Poland and the question of its assimilation in Great Britain. The emigration will return to Poland, in its majority, when our country is free: the emigration rejects assimilation into other countries.
§ Mr. Driberg
I suggest to the Home Secretary and the Attorney-General that when that kind of propaganda is being offered to the Polish troops—and I know it is naturally present already in many of their minds—it is extremely unwise and dangerous to impose the part of this Clause 414 which we are at the moment seeking to amend.
The Polish soldiers are not all in the mood expressed in those newspaper editorials. I paid a visit to a Polish camp in my own constituency during this last weekend, because I happened to have heard that there were some difficulties and hardships there and I dislike to think of any human beings, however our political views may differ, undergoing unnecessary hardships. I talked with a good many of the officers and men, with this Clause and, in particular, this Amendment, very much in my mind. These were extremely gallant men, many of whom had fought at Monte Cassino, and I was rather favourably impressed with the reasonable spirit they showed. Although they had what may, without offence, be called the familiar Polish prejudices, they realised that the only two possible alternatives for them were either to return to Poland or to go into the Polish Resettlement Corps. Indeed, in that one camp—where, as I say, they had all the familiar prejudices—they estimated that as many as 20 per cent. would be opting in the immediate future to return to Poland; which I thought rather hopeful. It is because so many of them are so sensible in accepting the two alternatives that I suggest to the learned Attorney-General that it is foolish and wrong to take this step of imposing an alien legal code in this country, which must, above all other things, tend to crystallise the present unfortunate situation.
The more definite the tendency is, especially by the imposition of such an alien code, towards the isolating of these Poles in their own quasi-military formations, the more unlikely it is that any substantial further number of them will decide to return to Poland and the more difficult it will be to assimilate them, through the Polish Resettlement Corps, into our society and to disperse them throughout it. Since these are the two alternatives which commend themselves to His Majesty's Government and to most hon. Members in this House, I feel bound to support this Amendment to a Clause which seems calculated to obstruct them.
§ 1.0 a.m.
§ Mr. Solley
I desire to support this Amendment because I venture to think it meets most of the objections which have been raised in this Debate. A number of 415 legal points have been taken, and, with great respect to the Attorney-General, I do not think he dealt with them with the seriousness and earnestness which these issues deserve. My main objection to the Clause is not a legal but a political one, but before I deal with the political aspects of this Amendment, I should like to say just a word or two about one legal aspect which I do not think has received the attention it deserves. We, as legislators, are being asked to give statutory authority to a code of laws described as the law of Poland in January, 1945. For the purpose of my argument, I do not care what particular policy or code this may be, but what I do know is that I am being asked to give statutory authority to a code of laws which has not been placed before me, and about the contents of which I know absolutely nothing. It may contain rules and regulations which are contrary to my conception of justice, and it would be entirely contrary to the spirit of this House to ask this House to acquiesce in such a plea, not knowing the effect of it. Having said that, I venture to add that whatever legal objections there may be this Clause, the objection I have raised is, at least as important as any of them, and is sufficient reason for supporting the Amendment.
As to the political objections to the Clause, reference has been made to the attitude of the Polish Government. Let me say at once that this House has the sovereign right to do as it pleases in connection with legislation that emanates from this House. Nevertheless, it is the policy of this Government to try to achieve a greater degree of amity with the Polish Government, and I should have thought it would at least have been reasonable to consider the effect of this Clause on the Polish Government. Rightly or wrongly, it is the considered view of the Polish Government, and one which they expressed to my right hon. Friend the Foreign Secretary on 1st March of this year, that this Clause, or any clause of like character, constitutes an infringement of Polish sovereign rights. Their view may be right or wrong, but it is a very serious matter to ask this House to put its seal on legislation which is so regarded by our Ally, and by a Government with which, I hope, we shall try to seek more friendly relations than have existed in the past. Just consider 416 for a moment what we are being asked to do. We are being asked to set up in this country a body of what might be described as friendly aliens who are defined as a Polish Force, and who will have a quasi-military set-up, and to which some sort of code of Polish law will apply. I can conceive of nothing giving greater affront and insult, to the Polish Government; and I venture to think that the difficulty is one of our own making. It would be a simple matter to meet the objection, which is in my submission a reasonable objection, of the Polish Government, by passing this Amendment. That would remove one of the most objectionable aspects of this Clause, namely, the administration of a body of Polish citizens in this country by Polish law without the consent, and indeed contrary to the request, of the Polish Government. For these reasons, I shall certainly support this Amendment, and I hope that by right hon. Friend, the Home Secretary will see whether he can in any way, meet the wishes of those of us on this side of the House who have the interests of Anglo-Polish relationships at heart rather than the interests of Polish Fascists, who seem to be of more concern to hon. Members on the other side.
§ Mr. Warbey
I want to take up the first point made by the hon. Member for Thurrock (Mr. Solley), namely, that this House is asked to incorporate into the Statutes a body of law of which it knows nothing whatsoever. That might not be a material point if the further operation of the law had nothing to do with us. What we are doing now differs fundamentally from what was done in the Visiting Forces Act, to which earlier reference was made. On that occasion, having passed the Act, the whole jurisdiction and following through of the consequences of that Act, were left to the Governments actually in being in this country. But under this Bill, this House is itself adopting responsibility for the continuing consequences of this Bill. We are appointing an Administrator who is responsible to the Secretary of State, who is himself responsible to this House. Therefore, we are being called upon to exercise a continuing responsibility in this matter in respect of law of which we have no knowledge. We do not know, first of all, to which particular body of law reference is being made. It may be one of three or four alternative bodies of law. It is all very well for the 417 learned Attorney General to make ex cathedra statements that the law of Poland on 1st January, 1945, means the law as operated by the Polish Government then existing, which was recognised by His Majesty's Government of that time.
§ Mr. Warbey
If the learned Attorney-General would say whether that is precisely and clearly defined, and is not merely an interpretation, a statement made by himself, that would clarify the point, which has certainly worried a very large number of hon. Members beside myself. Secondly, even having defined this particular body of law to which we are making reference, we still do not know what that law is, what is its form, whether it is in accord with our own canons of justice, and what penalties it may involve upon persons domiciled in our territory. I suggest that this is the most objectionable feature of this whole Clause—the fact that we are asked to exercise a continuing responsibility, but are unable to exercise it, because we do not know what are the terms of reference within which our responsibility has to be exercised.
§ Mrs. Leah Manning (Epping)
I thought this Amendment would cut out some of the more objectionable features of the Clause which has been so many times traversed tonight, but I was rather amazed by one remark of the learned Attorney-General. He said that this was a transitional Clause, and would only last for something like seven months. If it is true, I want to ask why we want it in the Bill at all. By speeding things up, I think we should get these troops out of this country before this very dubious provision is on the Statute Book. I understood that this Clause covered two groups, and not one. I understood that it covered those who have not made this option, who number about 16,000, and the group to which no option has been given, who number about 25,000. I should like the learned Attorney-General to say if we can dispose of the 16,000 and the 25,000 in such a short period as seven months. If we can, I suggest that we should do things more 418 quickly, and then there would be no need for this Clause at all.
§ The Attorney-General
I do not know if the House will allow me to speak again at this point, but there are several matters requiring answer. The answer to the hon. Lady is that the Clause does apply to the two bodies she contemplated in her question. I do not want it to be understood that these people will be disbanded in seven months. I do not want to bind the Government to disband them in any given period. But these forces are being disbanded as rapidly as is possible, and that is the intention of the Government. They are being dealt with as quickly as they can be absorbed into the Resettlement Corps, or repatriated, and I thought that the Home Secretary made the position very clear when he spoke some time ago.
§ Mr. Warbey
The Home Secretary did say earlier that this Clause would relate to those who refused either to return to Poland or to go into the Resettlement Corps.
§ The Attorney-General
I think perhaps the hon. Member for Luton (Mr. Warbey) was not in the House at the time, but it has been made perfectly clear that the Government do not intend to acquiesce in anything which is taken as allowing these people to remain at the expense of His Majesty's Government. The Government have put the choice to the members of this force. The choice has been made quite clear—go into the Resettlement Corps, go back to Poland, or go elsewhere. If that choice is not voluntarily accepted, His Majesty's Government have ample powers to force the decision upon them. It is, I repeat for the third time, abundantly clear that there is no intention to maintain this force in being beyond a limited period. It is being rapidly demobilised, and the House itself will have ample control over His Majesty's Government and will be able to make quite sure that this force is not maintained in being longer than is necessary for the purpose for which it continues to exist.
§ 1.15 a.m.
§ Mr. Benn Levy (Eton and Slough)
The corollary of what the Attorney-General has been saying, that the Government have in mind a time-limit—seven months has been mentioned, although not very firmly—is 419 that there must be some time-limit in the Government's mind beyond which they are not prepared to allow indecision to go. If there is that time-limit, could not the question which has already been posed be answered? Why should it not be a brief enough time-limit to obviate the necessity for this provision.
§ The Attorney-General
It the time limit were seven weeks, we should not obviate the difficulty. Here is a force which is not at the moment, or it may not be, governed by any body of law relating to discipline and administration. That is a situation which obviously cannot be allowed to continue, whether for seven weeks or seven months, or whatever it may be. I cannot state what the exact period is. Not all of these men are back in this country yet. All I can say is that the period will be as short as His Majesty's Government can possibly make it, but however short it may be, you have, until that period has elapsed, got to maintain discipline in one way or another. We have suggested that this is the commonsense way to do it, by maintaining for a few months longer comparatively—in relation to the seven years that have already gone, a comparatively short time—the rules which have hitherto been in operation.
May I pass very rapidly to the other points that were put to me? I think it was the hon. Member for Maldon (Mr. Driberg), who asked me why is it provided that the administrator to be appointed under the Clause is to be experienced in British military law. The answer is very short and very simple. It is so that nothing shall be done in the operation of this code of rules, in its administration, in the infliction of punishments under it, which is startling or repugnant to British conceptions of military law and justice. If it were found that any of the penalties which were being imposed were such as to startle a British administrator familiar with penalties which would be imposed in British law in matters of that kind, he would be entitled, as commanding officer, to intervene in regard to the matter.
§ Mr. Driberg
Who is to be the responsible administrator in regard to Polish law since the Administrator himself is not required to know anything about it?
§ The Attorney-General
The Administrator is entitled, under this Clause, to dele- 420 gate to appropriate people. He will no doubt delegate to people who are, and who have been, familiar with the administration of this system of law. He will supervise their administrative system to ensure that nothing is done in the course of their administration which would be startling to British ideas of propriety and justice.
§ Mr. Warbey
Is not the Attorney-General, in effect, now saying that the Administrator will have the power to amend the Polish military law in order to bring it into line with British military law, in which case, why not go straight to the point?
§ The Attorney-General
I am not saying that. I am saying that if anything is done in the course of the application of this code of rules which is contemplated by this Clause, if any sentence is imposed which seems to be quite out of proportion to what would be awarded in similar circumstances in ordinary British forces under British military law, the administrator would be aware of that because of his knowledge of British law, and would be able to intervene. It seemed to us an advantage, in appointing an administrator over this force, which was to be subject to British command for the future, that the person appointed to administer it should be one familiar with the laws relating to the administration of British forces. That seemed to us to be an advantage, and seemed to give some measure of protection against rules of law which hon. Members have been attacking as being harsh and unjust and inconsistent with British ideas. I think the hon. Member for Maldon also asked me a question about Income Tax. There is nothing in this Clause which affects liability to Income Tax. I would not wish to give any final opinion on a matter which was put to me at short notice in a branch of the law which is one of considerable complication, but I say at the moment, certainly in this Clause and in the Bill as a whole—but certainly in this Clause—there is nothing which would affect liability to Income Tax or exclude it.
§ Mr. Driberg
Can the Attorney-General kindly tell the House what the facts of he present situation are? With regard to those members of the Polish forces who have not agreed to go into the Polish Resettlement Corps or to return home to Poland, do they pay Income Tax at present?
§ The Attorney-General
I am afraid I could not answer whether, in fact, they are paying Income Tax at present. I do not know. Whether they are liable to pay Income Tax under this Bill is another matter. I can see nothing to exclude any such liability. The hon. Member for Thurrock (Mr. Solley) and the hon. Member for Luton put the point that they object to giving legislative effect to a code of law about which they say they know nothing, but apparently they are quite prepared to give carte blanche to the Executive to impose any code of law, known or unknown, which the Executive may choose.
§ Mr. Solley rose—
§ The Attorney-General
I have given way a great many times. It has been very difficult for me to complete more than one consecutive sentence without giving way, and I cannot give way any longer at this hour. There is no doubt at all about the position. All that has to be done by an officer who, under his delegated powers, is administering discipline in this force in the future is to ascertain whether a soldier who, for instance—I a m taking one particular class of offence
§ —disobeyed an order which was given to him on 1st January, 1945, could have been awarded any penalties if he had been tried for that offence on 2nd January, 1945. It is a very simple issue of fact. There has been, and there will be, no difficulty in ascertaining it. If he could have been awarded a penalty, that penalty may still be imposed, subject to the supervision of the administrator. If he could not have been awarded a penalty, it could not be. I ask the House to say that this really is a simple and commonsense way of dealing with this troublesome and unique situation, and to agree with it.
§ Mr. Whiteley rose in his place, and claimed to move, "That the Question be now put."
§ Question put accordingly, "That the words proposed to be left out stand part of the proposed Clause."
§ The House divided: Ayes, 107; Noes, 21.423
|Division No. 104.]||AYES.||[1.22 a.m.|
|Adams, W. T. (Hammersmith, South)||Hollis, M. C||Robens, A.|
|Anderson, A. (Motherwell)||House, G||Roberts, Goronwy (Caernarvonshire)|
|Awbery, S. S.||Hoy, J.||Robertson, J. J. (Berwick)|
|Bechervaise, A. E.||Hynd, H. (Hackney, C.)||Ross, William (Kilmarnock)|
|Bellenger, Rt. Hon. F. J||Hynd, J. B. (Attercliffe)||Sargood, R.|
|Blyton, W. R.||Jeger, G. (Winchester)||Segal, Dr. S.|
|Boardman, H.||Jones, D. T. (Hartlepools)||Shawcross, C. N. (Widnes)|
|Bottomley, A. G.||Jones, Elwyn (Plaistow)||Shawcross, Rt. Hn. Sir H (St. Helens)|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Jones, P. Asterley (Hitchin)||Simmons, C. J.|
|Butler, H. W. (Hackney, S.)||Keenan, W.||Skeffington, A. M|
|Callaghan, James||Kenyon, C.||Skinnard, F. W.|
|Champion, A. J||King, E. M||Smith, S. H. (Hull, S.W.)|
|Cobb, F. A.||Lavers, S.||Snow, Capt. J. W.|
|Collins, V. J.||Logan, D. G.||Soskice, Maj. Sir F.|
|Colman, Miss G. M||McKay, J. (Wallsend)||Stewart, Michael (Fulham, E.)|
|Comyns, Dr. L.||Mackay, R. W. G. (Hull, N.W.)||Taylor, H. B. (Mansfield)|
|Cooper, Wing-Cmdr. G.||McLeavy, F.||Taylor, R. J. (Morpeth)|
|Corbet, Mrs. F. K. (Camb'well, N.W.)||Macpherson, T. (Romford)||Thomas, Ivor (Keighley)|
|Crawley, A.||Marples, A. E.||Thorneycroft, Harry (Clayton)|
|Davies, Harold (Leek)||Mitohison, G. R||Tolley, L.|
|Delargy, H. J.||Monslow, W.||Ungoed-Thomas, L|
|Diamond, J.||Morgan, Dr. H. B.||Vane, W. M. F.|
|Dobbin, W.||Morris, P. (Swansea, W.)||Wallace, H. W. (Walthamstow, E.)|
|Dugdale, J. (W. Bromwich)||Moyle, A.||Watkins, T. E.|
|Dumpleton, C. W.||Neal, H. (Claycross)||While, H. (Derbyshire, N.E.)|
|Ede, Rl. Hon. J. C.||Nichol, Mrs. M. E. (Bradford, N.)||Whiteley, Rt. Hon. W.|
|Edwards, W. J. (Whitechapel)||Nicholls, H. R. (Stratford)||Wigg, Col. G. E.|
|Evans, S. N. (Wednesbury)||Noel-Baker, Capt. F. E. (Brentford)||Wilkins, W. A.|
|Forman, J. C.||Oliver, G. H.||Willey, F. T. (Sunderland)|
|Freeman, Maj. J. (Watford)||Paget, R. T.||Williams, W R (Heston)|
|Gilzean, A.||Paton, Mrs. F (Rushcliffe)||Willis, E.|
|Glanville, J. E. (Consett)||Popplewell, E.||Yates, V. F.|
|Greenwood, A. W. J. (Heywood)||Porter, G. (Leeds)||Younger, Hon. Kenneth|
|Griffiths, D. (Rother Valley)||Pursey, Cmdr. H.|
|Hall, W. G.||Randall, H. E.||TELLERS FOR THE AYES|
|Hannan, W. (Maryhill)||Ranger, J.||Mr. Pearson and|
|Henderson, Joseph (Ardwick)||Ridealgh, Mrs. M||Mr. Collindridge.|
|Baird, J.||Manning, Mrs. L. (Epping)||Silverman, S. S. (Nelson)|
|Grossman, R. H. S.||Mikardo, Ian.||Smith, C. (Colchester)|
|Driberg, T. E. N.||Piratin, P.||Solley, L. J.|
|Griffiths, W. D. (Moss Side)||Platts-Mills,. J. F. F.||Warbey, W. N.|
|Hale, Leslie||Pritt, D. N.||Wyatt, W.|
|Hutchinson, H. L. (Rusholme)||Royle, C.||TELLERS FOR THE NOES|
|Levy, B. W.||Scollan, T.||Mr. Bing and|
|Mack, J. D.||Silverman, J. (Erdington)||Major Bramall.|
Question, "That the Question be now put," put, and agreed to.
§ Mr. Peake
I beg to move, "That further consideration of the proposed Clause be now adjourned."
I move this Motion in order to endeavour to elicit some statement from the acting deputy Leader of the House as to the intentions of the Government with regard to further progress with Business tonight. You indicated, Mr. Speaker, that you intended to call two other Amendments to the new Clause. In the four and a quarter hours since 9.15 we have got the Second Reading of the Clause and disposed of one of the Amendments. In addition to the two Amendments to the new Clause there is another Clause standing in my name, to which I attach some importance, and some further Amendments, and at the present rate of progress we should be getting fairly well on with this Bill at about 5.30 or 6.0 this morning. It would, therefore, be interesting and convenient to hon. Members, many of whom have been in this House on Standing Committees since 10.30 this morning, to have some statement from the Government as to how far they intend to go.
§ the original Motion for the Second Reading of the Clause, and that may have some effect on the length of the discussion on it when it is called. I hope that we should be able to dispose of these two Amendments in a not unreasonable space of time. After that there is the right hon. Gentleman's own Clause dealing with naturalisation. He attaches some importance to it, and it is an important matter with which I shall have to deal. After that, I think, the remaining Amendment is a drafting one arising out of something to which my attention was drawn by the right hon. Gentleman on the Committee stage of the Bill where I endeavoured to meet the point he raised, and I would not imagine that that would be more than formal. After that there is the Amendment which deals with the alteration of the Title of the Bill, which, if this Clause is added to the Bill, will be purely formal. I should have hoped that with the exercise of some patience and with forbearance on the part of hon. Members we ought to be able to complete the Bill at no very distant hour.
§ Question put, "That further consideration of the proposed Clause be now adjourned."
§ The House divided: Ayes, 22; Noes, 130.425
|Division No. 105.]||AYES.||[1.36 a.m.|
|Agnew, Cmdr. P. G.||Legge-Bourke, Maj. E. A. H.||Taylor, Vice-Adm. E. A. (P'dd't'n, S.)|
|Astor, Hon. M.||Lloyd, Selwyn (Wirral)||Thomas, J. P. L. (Hereford)|
|Barlow, Sir J.||Macmillan, Rt. Hon. Harold (Bromley)||Thorp, Lt.-Col. R. A. F|
|Buchan-Hepburn, P. G. T.||Marples, A. E.||Vane, W. M. F.|
|Darling, Sir W. Y.||Peake, Rt. Hon. O.|
|Fox, Sir G.||Ramsay, Maj. S.||TELLERS FOR THE AYES|
|Fyfe, Rt. Hon. Sir D. P. M.||Smithers, Sir W.||Major Count and|
|Hollis, M. C.||Strauss, H. G. (English Universities)||Mr. Studholme.|
|Keeling, E. H.||Stuart, Rt. Hon. J. (Moray)|
|Adams, W. T. (Hammersmith, South)||Braddock, T. (Mitcham)||Cooper, Wing-Cmdr. G.|
|Anderson, A. (Motherwell)||Bramall, Major E. A.||Corbet, Mrs. F. K. (Camb'well, N.W.)|
|Austin, H. Lewis||Butler, H. W (Hackney, S.)||Corvedale, Viscount|
|Awbery, S. S.||Callaghan, James||Crawley, A.|
|Baird, J.||Champion, A. J.||Crossman, R. H. S.|
|Bechervaise, A. E.||Cobb, F. A.||Davies, Harold (Leek)|
|Bellenger, Rt. Hon. F. J.||Cocks, F. S.||Delargy, Captain H. J|
|Bing, G. H. C.||Collindridge, F.||Diamond, J.|
|Blyton, W. R.||Collins, V. J.||Dobbie, W.|
|Bottomley, A. G.||Colman, Miss G. M.||Driberg, T. E. N.|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Comyns, Dr. L.||Dugdale, J. (W. Bromwich)|
|Dumpleton, C. W||Manning, Mrs. L. (Epping)||Skeffington, A. M.|
|Ede, Rt. Hon. J. C.||Mikardo, Ian.||Skinnard, F. W|
|Edwards, W. J. (Whitechapel)||Mitchison, Maj. G. R.||Smith, C. (Colchester)|
|Evans, S. N. (Wednesbury)||Monslow, W.||Smith, S. H. (Hull, S.W.)|
|Forman, J. C.||Morgan, Dr. H. B.||Snow, Capt. J. W.|
|Freeman, Maj. J. (Watford)||Morris, P. (Swansea, W.)||Solley, L. J.|
|Gallacher, W.||Moyle, A.||Soskice, Maj. Sir F.|
|Gilzean, A.||Neal, H. (Claycross)||Stewart, Capt. Michael (Fulham E.)|
|Glanville, J. E. (Consett)||Nichol, Mrs. M. E. (Bradford, N.)||Taylor, H. B. (Mansfield)|
|Greenwood, A. W. J. (Heywood)||Nicholls, H. R. (Stratford)||Taylor, R. J. (Morpeth)|
|Griffiths, D. (Rother Valley)||Noel-Baker, Capt. F. E. (Brentford)||Thomas, Ivor (Keighley)|
|Griffiths, W. D. (Moss Side)||Oliver G. H.||Thorneycroft, Harry (Clayton)|
|Hale, Leslie||Paget, R. T.||Tiffany, S.|
|Hall, W. G||Paton, Mrs. F (Rushcliffe)||Tolley, L.|
|Henderson, Joseph (Ardwick)||Pearson, A.||Ungoed-Thomas, L.|
|House, G||Piratin, P.||Wallace, H. W. (Walthamstow, E.)|
|Hoy, J.||Platts-Mills, J. F. F||Warbey, W. N.|
|Hutchinson, H. L. (Rusholme)||Popplewell, E.||Watkins, T. E.|
|Hynd, H. (Hackney, C.)||Perter, G. (Leeds)||White, H. (Derbyshire, N.E.)|
|Hynd, J. B. (Attercliffe)||Pritt, D. N.||Whiteley, Rt. Hon. W.|
|Jeger, G. (Winchester)||Pursey, Cmdr. H||Wigg, Col G. E.|
|Janes, D. T. (Hartlepools)||Randall, H. E.||Wilkins, W. A.|
|Jones, Elwyn (Plaistow)||Ranger, J.||Willey, F. T. (Sunderland)|
|Jones, P. Asterley (Hitchin)||Ridealgh, Mrs. M||Williams, W. R. (Heston)|
|Keenan, W.||Robens, A.||Willis, E.|
|Kenyan, C.||Roberts, Goronwy (Caernarvonshire)||Wyatt, W.|
|King, E. M.||Robertson. J J. (Berwick)||Yates, V. F.|
|Layers, S.||Ross, William (Kilmarnock)||Younger, Hon. Kenneth|
|Logan, D. G||Sargood, R.||Zilliacus, K.|
|Mack, J. D.||Segal, Dr. S.|
|McKay, J. (Wallsend)||Shawcross, C. N. (Widnes)||TELLERS FOR THE NOES:|
|Mackay, R. W. G. (Hull, N.W)||Shawcross, Rt. Hn. Sir H. (St Helens)||Mr. Popplewell and|
|McLeavy, F.||Silverman, J. (Erdington)||Mr. Hannan.|
|Macpherson, T. (Romford)||Silverman, S S. (Nelson)|
Bill read the Third time, and passed.
§ Mr. S. Silverman
I beg to move, as an Amendment to the proposed Clause, in line 52, to leave out Subsection (8).
I hope that the right hon. Gentleman will be amenable to this matter because he has made mention of it. I am going to say—and I do not wish to take very long about it as some of the matters were covered in the Second Reading Debate—that I base my arguments upon the assertion that everything that was done in respect of this Amendment and the internal management of this force from 1st June, 1945, has been done illegally. There was no valid authority for doing it, the Allied Forces Act did not apply, and in the absence of the Allied Forces Act, there was no other law enabling discipline to be applied and persons to be tried and imprisoned. I want to know from the Attorney-General, if this Amendment is resisted, whether he is prepared to assert positively that there was any legal validity in these proceedings at all—
§ 1.45 a.m.
§ The Attorney-General
May I deal with that point at once? I thought I had made it clear. I make no such assertion. All I say is that the point had not been decided the other way. It was a matter on which two views are held.
§ Mr. Silverman
I understand that. The Attorney-General said it several times. But that leaves me free to say—and he 426 says he is not prepared to deny it—that there was no legal authority for all these things being done, and that when he had an opportunity to persuade a court that there was some legal validity, he definitely refrained from taking that opportunity, making that assertion or getting that judgment. The position in which the House now finds itself is that we are entitled to say—and nobody can deny it —that there was no legal validity behind these acts.
What does Subsection (8) do in this situation? In cases where people have been imprisoned and are now imprisoned in circumstances for which even the Government will not say there was any legal justification, we are seeking now in a Bill dealing with a totally different matter not merely to indemnify people against these acts of civil tyranny but to perpetuate the tyrannous acts which were committed. In a Subsection of a new Clause added on the Report stage in a way which necessitates even altering the Title of the Bill, we are proposing to legalise a whole series of illegal tyrannous acts.
It may be that on proper consideraton, with all the facts before us, knowing exactly how many people are involved, knowing where they now are and with some opportunity of reviewing each case in detail, the House might deem it right 427 to justify retroactive effect in relation to all these things, for which there never was any legal justification at the time they were done. I submit that the House will not do that except on a patient and careful further investigation of all the facts in each individual case, and we ought not to be asked to do that kind of thing in this sort of way.
I should like to know whether, if the Government insist on our doing it in this way, they can tell us how many people are in fact affected, because there appears to be among members of the Government who have spoken on this matter from time to time considerable doubt or difference of opinion. I will not quote all the varying statements that have been made from time to time by Ministers on this matter but content myself with one very short quotation. The Parliamentary Secretary to the Ministry of Labour said that somebody to whom he is replying:Made another point about the existence of Polish discipline, and its being applied to the Polish Forces in this country. My information is that that terminated in July, 1945, and that since that date there has been no application at all of Polish military law in this country."—[OFFICIAL REPORT. 12th February, 1947: Vol. 433, c. 475.]Is that right or wrong? If it is right the Government do not need this Subsection because, on that view of the matter, there are no acts to justify its continuance. There is nobody to indemnify, and there is no person imprisoned. If it is wrong, then I think the House is entitled to know what is right before it accepts Subsection (8). What is the extent of this evil to which we are expected to give retroactive legal sanction? How many persons did it affect? How many people are in gaol? For how long are they in gaol? Where are they? In what circumstances were they sentenced? What were they alleged to have done wrong? How did they come to be where they are? We cannot give a blank cheque of indemnity even to a Government, and certainly we cannot give a blank cheque of indemnity to a private army. That is the situation with which we are faced, and I do not want to make a wrong argument about this.
Hon. Members on the other side of the House will judge for themselves, but I do say to my hon. Friends on this side that on this point it does not matter what 428 they think about the merits of the Bill as a Bill. It does not matter what they think about the merits of this particular Clause as a Clause. Nor does it matter what they think about the last Amendment on which the House divided. That is quite a separate point, and one which I hope will appeal to my hon. Friends here. If the Government want to do this kind of thing they ought not to do it in this haphazard and slipshod fashion, but they ought to come forward with a Bill which we can examine in the light of day, both metaphorically and literally, and examine on its real merits.
§ Mr. Paget
I very much hope that the Minister will reconsider this Subsection. After all, there are fewer people in the world today who are enjoying civil liberty under the law than perhaps at any time within history. At this time, when the very principles of civil liberty—the ideas that a man shall not be punished save by due process of law, and that his liberty shall not be taken from him save by due process of law—are being challenged throughout the world, we, one of the last of the free Parliaments, should be very careful to guard that principle. We should not treat it in any cavalier spirit. The Attorney-General has said, "Well, it is a matter of doubt. There is one opinion here and one opinion there as to whether these people are illegally imprisoned." With very great respect, it is as clear as a pikestaff that they are illegally imprisoned.
The only authority that can be adduced is the Allied Forces and Visiting Forces Act, and that Act says that where military forces are in this country their officers shall have all such powers as are conferred upon them by the laws of that power—in this case Poland. We all know that the law of Poland does not confer on the Armed Forces here any power whatever, and it has not since July, 1945. It is really idle to argue that there is any doubt whatever that everything which has been done since then is illegal, and that every one of these people who have been imprisoned have been wrongfully imprisoned. As they have suffered, I say that it might be perfectly right to introduce an Act of Indemnity. It probably is. It might be perfectly right, even, to produce what I said amounts to an Act of Attainder, and to say that these illegal sentences shall be made good 429 by Parliament, that these are fundamental invasions of the principles of freedom under the law, and that it is really a disrespect for that principle to treat it in this casual manner. If we find that this very serious thing has been done, that personal liberty has been unlawfully invaded, this is a case when the Government who are responsible for that unlawful invasion of civil liberties ought to come to Parliament with proper respect, and say that a very serious thing has been done; that they are sorry, but that accidents do happen, and that this serious thing must be put right in the proper way.
§ Mr. Mikardo
I want to make one or two points to which no reference has been made during the proceedings on this Bill. When the point at present under consideration was being argued on a point of Order earlier on, and later, on the Clause itself, it was argued entirely on legal grounds. Hon. Members who are lawyers more or less kept a closed shop on this subject, and I know with what temerity a layman ought to enter into a lawyers' birthday party, because he tends to be looked upon with the enthusiasm with which a vegetarian looks upon a caterpillar in his salad. I am not going to bother the learned Attorney-General by putting any legal argument for him to answer. I never enter into legal arguments, and when I hear lawyers' arguments I cannot understand them. Perhaps that is because when lawyers speak in Latin they pronounce it vilely, and when they speak in English they are so ponderous, with their Greek prefixes and Latin suffixes, or their Latin prefixes and Greek suffixes. However, I want to make a layman's point which carries on the point referred to by one or two of my hon. Friends; and that is the international political repercussions of this Clause, and particularly of the Subsection, and still more particularly of the passage in the Subsection:as if the said forces had not ceased to be recognised by the Government of Poland.That Subsection makes it quite dear that this is an armed force, and makes it quite clear, also, that this is an armed force antipathetic to the Government of Poland.
I would ask the House to recall that in the early nineteen-thirties, at the Preparatory Commission of the Disarma- 430 ment Conference, questions of this type were actually considered. The Preparatory Commission of the Disarmament Conference set itself to finding a definition of "an act of aggression," and following the report of the then Greek delegate, an act of aggression was defined as including the maintenance by one nation upon its territories, forces which were hostile to another nation. By that definition, the powers sought by Subsection (8) of the Clause is an act of aggression. It is quite feasible that the Polish Government, which is already given evidence of the fact of what is agreed by this Clause as a whole, may well ask the successor to the League of Nations—the United Nations organisation—whether it accepts the interpretation and definition of this procedure as to the constitution of an act of aggression by ourselves in retaining those Polish Forces on our territory. H.M. Government might well find themselves in embarrassment if such an interpretation were allowed by the United Nations organisation for the present Polish Government.
One has only to consider how this House would react if the boot was on the other foot. Let us suppose that a number of the citizens of this country fled the country, terrified by the tyrannous fears of loss of liberty which put right hon. and hon. Members opposite into such a state of mind yesterday. Let us suppose that they fled to Spain, and took their currency with them, and the Government of Spain proceeded to indemnify them from their obedience of the law of taking their currency with them by treating them as if the law of Great Britain prior to 1945 applied to them. Suppose that we had a Communist uprising, and the leaders of that uprising—supposing it were not successful, fled the country and we held them guilty of treason, while the Polish Government held them to be guilty according to the laws before the date of the uprising. I would like to say I do not include among the leaders of that uprising the hon. Member for West Fife (Mr. Gallacher), who is much too kindly and mild-mannered a man for that.
The point I have just made is not an academic question. In the first half of the eighteenth century, the Stuart pretenders found refuge in France, and they set up a Court—I do not know if they set up any 431 sweet shops as well—and were treated by the French Government as though living under the laws of Great Britain as they applied prior to 1689. These people lived under the pre-1689 law. They kept court, and I believe they even had a small Scotch army. I do not know if they called it the Scottish Resettlement Corps, but, in any case, His Majesty's Government found themselves very aggrieved by the situation and held themselves prepared to go to war on these grounds. This friction in the second half of the eighteenth century persisted, and there was war between Great Britain and France during that time. I say with great seriousness that we should not allow ourselves to be let in for a situation in which we can be held to be responsible for that sort of thing.
I want to make a last point. This House has always, in particular, been very chary of passing retroactive legislation, because retroactive legislation can be an extremely dangerous weapon in the hands of the Executive, and I am quite sure than hon. Gentlemen opposite, who always keep a watchful eye, quite properly, upon the arrogation to itself by the Executive of undue power, will appreciate this. I remember, although I was not a Member of the House at the time—I was an avid reader of HANSARD, however—that during the war it was necessary to bring in a piece of retroactive legislation in order to exculpate some members of the personnel of the Home Office and the National Fire Service from the effects of some errors which had been made in the past, and although this was non-controversial, and although these actions had been carried out in honest error and in the direct assistance of the war effort, nevertheless the present Lord President of the Council came to the House and, in a tone of the greatest humility, begged the House to forgive him for having to introduce a piece of retroactive legislation. This, let the House note, was legislation to protect people who might otherwise have been condemned.
Here, as my hon. Friend the Member for Nelson and Colne (Mr. Silverman) has pointed out, on the Report stage of a Bill, on a Clause drafted for the third time, we are, so to speak, if I may use the term without being ruled out of Order, gate-crashing the Statute Book. I hope, Sir, 432 you will not consider that to be an un-Parliamentary expression. There is very good authority for it, and there is some authority for the suggestion that it is un-Parliamentary. Here we are gate-crashing the Statute Book in this way with something that the House has always been very chary about accepting. I hope that my right hon. Friend the Home Secretary, who has won the admiration of the House for his patience and tolerance in this matter, and who has such a fine sense of what is proper in these matters, will see his way clear to look at the matter again.
§ Mr. Gallacher
I want to put to the Minister a point which I hope he will consider very seriously. He and the Attorney-General have said that they want to get rid of this particular group as early as possible. This Subsection deals with this particular group, a group which, according to the tone of voice of the Home Secretary and the Attorney-General, are going to be something of a nuisance. They will not go into the Polish Resettlement Corps, they will not go back to Poland. The Home Secretary and the Attorney-General said that they want to get rid of them as quickly as possible, and that if they do not go pretty soon, the Government are in a position in which they can take action to get rid of them. Here we have a situation in which we are to get rid of these fellows as early as possible. It may be in a month's time, it may be in six month's time, or it may be in 12 month's time.
I do not know what is the time limit which the Government have in mind, but these people are to be got rid of. There is the Polish Resettlement Corps, there are those who will go back to Poland, and we shall get rid of the group to which this Clause applies, but even when we get rid of them, there will still remain the lads who are in gaol. The evil effects of what has been done will remain. It is clear that there is to be this sorting out of the whole of this situation, and surely, those who have been illegally imprisoned should be given the opportunity of coming into the Resettlement Corps or going back to Poland. Surely, we cannot have a situation in which, having finally got rid of this particular group, and this particular group having been got rid of, the Clause ceasing to operate and this Subsection which gives indemnity ceasing to operate, the men who were 433 illegally imprisoned will still be in gaol? I do not think that is a situation that can be justified.
There is another thing to be said in regard to the political side. I am quite certain that there is not a precedent in the history of this country for such a Subsection as this. This Parliament has no sovereign right to impose the laws of another country on its nationals in this country. It can treat them as aliens and impose its own laws, but this Government never, to my knowledge, had any right, of ever claimed to have any right, to make the laws of another country applicable to the nationals of another country in this country. I may be told that there was in 1940 a Visiting Forces Act, but that was passed as a result of consultations with the Governments of the countries involved, and I believe that in most cases it was done at the request of the Governments involved. It was an arrangement between Governments.
I challenge the Home Secretary and the Attorney-General to give the House a precedent for a Clause of this kind. I suggest that if they have any respect for the Government of another country, the Government of Poland, and if they are concerned to get rid of this particular group at the earliest possible moment, there should be no question of indemnifying what has been done. Far the best thing to do would be to release those who have been imprisoned and give them the opportunity to enter the Polish Resettlement Corps or go back to Poland, and then have only the one problem, and a problem that should be settled at the earliest possible moment—a Government decision that this particular group has got to decide one way or the other, or the necessary action will be taken with regard to them.
§ Mr. Ede
I can give the hon. Members some of the information for which they have asked me. Only two people have been sentenced in the last three months under the powers that these Polish forces thought they possessed, and there are only 10 people in detention at the moment. That is the statistical information for which I was asked, and I hope it gives hon. Members some idea of the extent of the problem with which we are faced.
§ Mr. S. Silverman
Can the Home Secretary add to that information any information about the length of the sentences, and, if we pass this Clause, how long they will remain in detention?
§ Mr. Driberg
Can my right hon. Friend say whether the men who were sentenced illegally to detention have been released pending the passing of this legislation?
§ 2.15 a. m.
§ Mr. Ede
All the information I have is that they are in detention now. [HON. MEMBERS: "Oh."]. I do not think there is any need to say "Oh." As usual, I am trying to be as frank as I can with the House. It is far better to make a clean breast of things, because if one tries to hide anything, hon. Members are only the more gratified when they find it out, as they usually do. That is the position. I give this pledge to the House, that as soon as the administrator is appointed, his first task will be immediately to review the sentences of any men who may then be in detention and to make any adjustment of those sentences he thinks right having regard to all the circumstances of the case in the light of the powers with which the Clause is armed. We will endeavour to bring this state of affairs to an end as soon as possible.
An Hon. Member
May I ask the Home Secretary under what powers he will be able to review these sentences, which surely come under an entirely different Subsection?
§ Mr. Ede
He will be entitled to review sentences under the powers given to him in Subsection (4) of the Clause. I have taken particular care to ascertain that his jurisdiction will extend to that extent and I hope it may be accepted that I have endeavoured to make quite sure that the pledge I have given can be made operative. I want to point out that people are only protected where in good faith they acted in the exercise of the powers they thought they possessed. In bad faith, they are outside the jurisdiction of the law of Poland. Where they have inflicted a sentence on a man they still remain liable for any damages he may be able to recover even if this Clause is passed. It is purely confined to indemnifying them 435 against acts they took legally within the powers they thought existed.
I share the liberal views expressed by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) and my hon. Friend the Member for Northampton (Mr. Paget) with regard to the general principles here. It is to my mind a shocking thing that this state of affairs should have existed. I do not think that at any stage in the discussion of this clause I have concealed my views on that from the House. There are certain people, all of them Poles, who are not acquainted with the civil law of this country and the rights that those people had from 5th July in this country, but who went on exercising, with the knowledge of the British Government, the powers they had previously been exercising. I do not think the Government could do other than ask the House to indemnify people who had so acted in this matter. The only question that really arises—I am sure the House will have accepted that proposition—is whether it should be done in this Subsection or whether there should be a separate Bill of indemnity to secure the same results.
I hope, in view of the frank statement I have made as to the limited number of people who are now detained and the promise that the circumstances shall be immediately reviewed, the House will feel that although this is a very exceptional course to adopt it is one probably most convenient to the House and amply safeguards all the points raised by my hon. Friends. I sincerely hope the House will adopt that view and allow us to retain this Subsection in the Clause. They can rest assured that we will take every effort to see that any injustices which may have been done shall be remedied within the limits of our power.
§ Mr. S. Silverman rose—
§ Mr. Silverman
I wanted to ask your leave, Mr. Speaker, to withdraw the Amendment. I hoped such a request would be in Order. I think it is customary, when such a request is made, to give 436 a reason, and I was endeavouring to do that, but, of course, if hon. Members object, I will refrain.
§ Mr. Silverman
I hope I may get it. I only want to thank the right hon. Gentleman for the spirit in which he has met this Amendment and for the information he has given, and to say that, having regard to the smallness of the number of people affected, and the undertaking he has given to review even that small number of cases, we do not think it is right to press this Amendment to a division.
§ Amendment, by leave, withdrawn.
§ Proposed Clause added to the Bill.