CLAUSE 2.—(Legal Proceedings.) (Hansard, 23 March 1948)

§ Lieut.-Colonel Lipton
I beg to move, in page I, line 23, to leave out "whether."
It may be for the convenience of the Committee if this Amendment was discussed with the one in line 23, to leave out "or outside." I move this Amendment because I consider that the Clause as 2864 it stands is amorphous and ominous—all the more ominous because it is amorphous. The Attorney-General during the Second Reading Debate made one or two remarks of a febrifugal character in which he indicated that this Clause was not of such far-reaching effect as hon. Members appeared to think. He said: … to quite a considerable extent it involves no more than a clarification of what we believe would, in any event, be the existing law after we lay down our responsibility for Government on 15th May."—[OFFICIAL REPORT, 10th March, 1948; Vol. 448, c. 1323.] 2865 The Clause would give the Government power to take any action of any kind not only inside, but outside Palestine. It would be possible under this provision for the Government to incarcerate a Member of this House who may have made a speech which conflicted in some way, in the view of the Government, with any matters connected with the termination of the jurisdiction of the Government in Palestine. The Government could close down any newspaper in this country for printing a speech which was regarded as impeding in any way the termination of His Majesty's jurisdiction in Palestine. It may be said by my right hon. and learned Friend that there is no intention to exercise such powers. Why, then, word the Clause in such an all-embracing manner as to render possible the exercise of all kinds of extraordinary powers outside Palestine?
The Clause involves unspecified action outside Palestine that might involve us in complications of very considerable magnitude and might indeed have international repercussions. It is, in my view, an example of totalitarian drafting to which it is difficult to find a parallel in any legislation that has hitherto been introduced into this House. I have ceased to be surprised or disappointed at anything the Government may say or do in relation to Palestine, but, if a similar Clause had been found in legislation of any other Power behind the Iron Curtain, it would be quoted with great indignation as an example of the dictatorial suppression of legal rights and remedies, and we would have long disquisitions about the iniquity of this kind of process from many quarters of the House.
In the words that I seek to remove, there is neither rule nor law. I quite admit that, so far as action in Palestine is concerned, it is necessary that power of this kind should be conferred upon the Government, but I cannot see why the Government should be given power to do what they like and be immune from legal process in respect of any action which they might see fit to take outside Palestine as well. I am reminded of the comment made recently in the editorial columns of a newspaper not unfavourable to the present Government. I allude to the "News Chronicle," in which it was stated that 2866 the power of Ministers has increased, is increasing and ought to be diminished.
This Amendment provides the Committee with an opportunity of taking away a power which, in my view, it is not necessary for the Ministers of the Government to have. We do not deny the necessity of this Clause so far as action inside Palestine is concerned. Some of us feel that the assumption of such powers in respect of action outside Palestine is making a demand upon hon. Members of this House which ought to be very carefully scrutinised and resisted, unless some very adequate explanation is forthcoming why those powers should be granted.

§ Mr. Janner
I rise to support the Amendment, because I feel, and I think the Attorney-General, who is to answer the points raised by my hon. and gallant Friend, will probably also feel, that it is essential that powers which are taken should not be wider than those absolutely necessary for the occasion. I have the grave fear that the powers which are being taken in this Clause extend well beyond anything that is absolutely essential in order to bring the provisions of this Bill, when it is passed, into effective use.
It is a very wide power that is being asked for here. One understands the position with regard to Palestine itself, although one has very considerable fears about it. There has been for long enough in Palestine what might almost be described as a police State—[Interruption.] Oh, yes, 'there has—a state in which the inhabitants have had very little opportunity of exercising ordinary civil rights. I do not think that can be denied. The type of restrictions placed upon the individual in Palestine—the individual who had a perfect right to be there, the individual who, by his work, did something which the world should be proud of—let us understand this position properly—not on individual doing some-think which was wrong, but an individual building the whole time against adverse circumstances—has included measures which nobody in this country would dream of tolerating. I do not want that sort of thing at this very delicate stage of the handing over of the Mandate.
Let me give an illustration, and I would like my right hon. and learned Friend to tell me the answer if he can. Would this 2867 Clause enable some person who was in authority on one of our ships—one of our naval vessels—to interfere with the victims of persecution, who had already had sufficient intolerance shown towards them, if they wanted to come to Palestine after we had relinquished the Mandate? Suppose somebody did that, and I am putting a case which is not an entirely hypothetical case.

§ The Temporary Chairman (Colonel Sir Charles MacAndrew)
That issue does not arise on the Amendment, but might be discussed on the Question "That the Clause stand part of the Bill."

§ Mr. Janner
This Clause concerns action done outside Palestine, and I am referring to that. I want to leave out the part of this Clause which deals with action done outside Palestine, and I am talking about something that is done outside the three miles limit. I ask my right hon. and learned Friend if that would open up the possibility of any officer, or any person at all, taking action of that nature without being responsible to a proper court? The proceedings referred to here are proceedings which can legitimately be taken against an individual or against a set of individuals who would have the right to defend themselves, but who, because of this Clause, would not be required to defend themselves at all, because it would be presumed that their actions were correct and nobody could possibly take proceedings against them.
What we are actually doing in this Clause is to exclude any transgressor from the ordinary rules of law by giving to him the right, when he obtains a certificate from the Government or from the authorities to the effect that he is acting in the course of his duty, to be excluded from the provisions of the Clause and from any possibility of action against him. That is a very important concession, and it militates against the ordinary rules of legal procedure, and should not extend beyond its proper limit. I ask my right hon. and learned Friend what is the intention behind it, and, if he will give me a satisfactory explanation, I have not the slightest doubt that my hon. Friend as well as myself will be pleased to accept that explanation and not proceed further.

§ The Attorney-General
I hope to satisfy both my hon. Friends that this Clause does not really bear the construction which they seek to put upon it, but I must, at the very outset of my remarks, repudiate the suggestion that we have been conducting something in the nature of a police State. The degree of personal liberty which has been accorded and continues to be accorded to persons in Palestine is, as I think the Committee will agree, quite remarkable in view of the many acts of terrorism and violence which have been directed against the authorities.
Nor do I think that I can assist the Committee by following my hon. Friend in his hypothetical case which he sought to put to me, but, out of courtesy to him, I will deal with the one point about immigrants. If, in fact, His Majesty's Forces were to interfere with immigrants, and if they found it necessary for their own protection so to do, there is no doubt that it would be an act of State, not actionable in the British courts on the part of any alien, quite apart from the provisions in this Clause.

§ Mr. Pritt (Hammersmith, North)
Surely it could not be an act of State if it were committed on a British ship, as might well happen if an immigrant were taken aboard such a ship. And, in such a case, the man would have a cause of action which would be covered by this Clause.

§ The Attorney-General
I should not be prepared to accept that that would necessarily be the result. All that this Clause does is to protect action of that kind if it were taken in order to facilitate the safe withdrawal of His Majesty's Forces from Palestine. Any other interference with immigration into Palestine after 15th May would not be covered by the provisions of this Clause. Whether the defence of "act of State" arose would be another matter, depending on who brought the action and the actual nature of the complaint. It is necessary, in creating the indemnity which this Clause seeks to create, to extend it to acts which are done outside Palestine provided, as paragraphs (a) and (b) of the Subsection are intended to make clear, that those acts are done for the purpose either of maintaining peace and order in Palestine or in connection with the withdrawal from Palestine. The indemnity relates only to matters concerning Palestine, and is directed to one or other of those two 2869 objects, according to the date at which the act takes place.
Some of the things which are done in Palestine, either in connection with maintaining order there before 15th May, or in connection with the safe withdrawal of British forces after that date, may be ordered from outside. The Commander-in-Chief in Egypt, for instance, may have occasion to direct certain action to be taken inside Palestine. It would indeed be odd if this Clause, as would be the case if this Amendment were accepted, protected only the persons carrying out the order but gave no protection to the senior officer, who, in the course of his duty, had found it necessary to give that instruction. Whatever the theoretical position may appear to be, there is no practical risk that this indemnity will be misused or that it will be used to cover acts which do not relate to the good government of Palestine or to the actual withdrawal of our troops. If any attempt were made by a Government Department to issue a certificate under the Subsection in relation to an act which was not directed to one object or the other, this House would have the remedy in its own hands. I must ask the Committee, therefore, to accept this part of the Clause as it stands.

§ Mr. Mikardo
I do not know how far my hon. Friends who moved the Amendment have been satisfied by the explanation of the Attorney-General, but I must confess that my own doubts are not completely set at rest. I think it will be agreed that, in the peculiar circumstances which would exist if British troops were for a time in Palestine in process of evacuation after the cessation of the Mandate, there should be an indemnity. It may be necessary for them, whilst arranging their evacuation, to take measures to defend themselves against attack. In the same way that we agree that some form of indemnity is necessary, we should agree equally that indemnity should not go further than the interests of good government and civil liberties demand. In giving our troops the right to protect and safeguard themselves we should not, under this guise, put into effect legislation which gives wide totalitarian powers, not only in the country but outside it.
When the Attorney-General rebutted with indignation the charge that Palestine has for some time had the character of a police State, he was loudly cheered in 2870 all parts of the Committee. I hope that my hon. Friends and others will support me if I say that that cheering was based more solidly on their own patriotism than on their detailed knowledge of what has actually been happening.

§ Mr. Randall (Clitheroe)
It is a matter of opinion.

§ Mr. Mikardo
In that case, I will adduce a little evidence, which may come afresh to my hon. Friends and which is germane to this Amendment. What are the characteristics of a police State? I am talking about the extent to which the rights which are given under this Clause should be applied inside and outside Palestine. I wish merely to give two examples, which are relevant to the question of whether the power should extend outside Palestine, which is the purpose of the second Amendment standing in the name of my hon. and gallant Friend. Amongst the things for which we quite rightly criticise other countries is the maintenance of censorship. For many years, since long before the terrorism started, there has been a very rigid censorship in Palestine. I have some knowledge of this censorship but I doubt whether many of my hon. Friends have had experience of it. It is one of the least intelligent censorships in the world. I can quote the example of the eminent English Christian divine who was in Palestine a few years ago at Christmas time. He was asked to contribute a leader about the spirit of the Christmas season to a journal written in English in Palestine. His leader ended with words which will not be unfamiliar to hon. Members: "Peace on earth, Goodwill to all men." The Palestine administration censored the words "Goodwill to all men." That is one of the many examples I can quote of this unintelligent censorship.
My next point concerns specifically the question of the exercising of jurisdiction outside Palestine. We rightly condemn countries to the East and elsewhere which put the State above the law, States which operate against the citizen the right to arrest without charge and to detain without trial. That is surely the defence of a police State. That right has been exercised by the Palestine administration both inside and outside the country for many years. Perhaps another example which I can quote may interest some of my. 2871 hon. Friends who just now cheered and said that it was a matter of opinion. In October, 1944, 291 citizens in Palestine were arrested and deported to Eritrea. They may have been very bad people, but I do not know anything about them. They may have been perfectly awful and dangerous people but, whoever they were, no charge was ever levelled against them and they have never been brought to trial. They were arrested and given no opportunity of knowing what they were accused of and were immediately rushed to the port and shipped to Eritrea.
That was at the same time as we in this country were operating Regulation 18B, under which we also were arresting people without trial. It may well be said that those people might have been a danger to the community in wartime, in the same way as some of the people whom we arrested under 18B. As soon as the war was over, however, we lifted 18B, the powers under which these people had been detained without trial for three and a half years.

§ The Temporary Chairman
The hon. Member must not pursue that line of argument. He is now going very wide of the Amendment.

§ Mr. Mikardo
With the greatest respect, I am querying whether under this Bill, and in relation to this Amendment, these people at present being detained outside Palestine without ever having been charged with any offence, and without ever having been brought to trial, can continue to be detained by His Majesty's Government with immunity against any action in a court of law. This is not an academic question. These people were moved to Eritrea and Kenya, and are still held in detention in Kenya by His Majesty's Government. I want to know whether, in the light of this Bill, His Majesty's Government will have any immunity against any action by these people for their continued detention outside the country.
A few weeks ago the Under-Secretary of State for the Colonies, in reply to a Question I asked about what would be done with regard to these people, said that they would be repatriated, and that arrangements were being put in hand. I do not know whether my hon. Friend 2872 knows that, since then the Attorney-General in Kenya has been to these detainees and has told them to take no notice of what my hon. Friend said, or of the statement which was made to the Commission, and that they would not be repatriated before 15th May. The question I ask is: Since they were detained under defence regulations, and since those defence regulations are part of the jurisdiction of the Palestine Administration—which, under this Bill, determines on 15th May—under what powers will the continued detention of these people after 15th May be carried on? If it does go on, to what extent does this Bill provide immunity against action by the State? It is for that reason, and only for that reason—although there are many others—that this Amendment is extremely important.

§ Lieut.-Colonel Lipton
In view of the partial assurance of my right hon. and learned Friend, I beg to ask leave to withdraw the Amendment.

§ Mr. Mikardo
I beg to move, in page 2, line r, after "Majesty," to insert: other than a deserter or a person absent from duty without leave. This Amendment is self-explanatory, and the point at issue is extremely simple. The Bill at present provides immunity to servants of His Majesty—including, of course, officers and other ranks of His Majesty's Forces. For reasons which I gave just now, I am sure the Committee will agree that that should be so, and that any officer or soldier or airman carrying out his duty—perhaps defending the equipment or stores of his unit against attack—should have immunity, and should be protected against any action which might arise. But a different question arises when the action is committed by a deserter.
I must confess that this raises some legal points which are beyond me, for I do not pretend to know the law. It may be that in any event a deserter has put himself outside the law, and that in any event he could not be so protected. If that be so, I plead my lay ignorance in putting the matter forward, and if it could be made clear that that is the position, then the point which I and my hon. Friends desire to make will be fully met. I am sure the Committee will not want 2873 that immunity, which is properly extended to serving officers and other ranks, to be extended to those who have failed in their duty through being absent without leave, or by deserting from their units.

§ The Attorney-General
My hon. Friend has rather anticipated my answer to this Amendment. The indemnity created by this Clause extends only to acts done in good faith, and in the execution, or the purported execution, of duty. A deserter, or a person absent from duty without leave could not, of course, avail himself of the protection afforded by this Clause, and this Amendment is not, therefore, required.

§ Mr. Pritt
Surely, that will not do for a moment? Suppose a person who is absent without leave, perhaps for 24 hours, does something in an emergency, and purports to act in the execution of his duty, whether it is repudiated afterwards or not. Suppose he proceeds to arrest somebody and, unfortunately, kills or injures him in the course of so doing. Suppose there are then proceedings in consequence, and the Crown says, "We had better stand by this chap. He was doing his best and acting in good faith, and what he did was purported to have been done in the execution of his duty."Would that be a complete defence? The question is whether there ought or ought not to be a defence in such circumstances.

§ Air-Commodore Harvey (Macclesfield)
Surely, a soldier or airman who is absent without leave is in a different category from one who has deserted. If the man has not sold his uniform, or otherwise disposed of it, he is not a deserter. Will not the Attorney-General make that quite clear? There may be some extenuating reasons why the man is absent without leave, and why he cannot possibly be proceeded against as a deserter.

§ The Attorney-General
That is perfectly true, as the hon. and gallant Member knows as well as I do.
To my hon. and learned Friend the Member for North Hammersmith (Mr. Pritt), I would say that no doubt if a soldier were absent without leave and, during his absence, did something which he believed to be necessary for the performance of his duty, and the Department concerned subsequently came to the conclusion that it was necessary for the performance of his duty and gave a certificate 2874 to that effect, that man would be protected. This Amendment is really designed to meet the case of a man who had deserted, or who was absent, and was doing something which it was no part of his duty as a soldier to do.

§ Mr. Mikardo
In view of what has been said, I beg to ask leave to withdraw the Amendment.

§ Mr. Janner
I beg to move, in page 2, line r, to leave out from "Majesty" to "if," in line 2.
This Amendment relates to the powers given under this Clause, with a view to ensuring that those powers are not extended beyond a reasonable and proper limit. I can understand that in certain circumstances individuals who are in a position of authority should be protected. But for a person to be able to delegate that authority—particularly in serious matters of this description—is, in my view, going beyond the necessities of the occasion, or of any occasion which might arise under this Clause.
The proposal contained in the Amendment is quite simple, and I do not think that the Committee would regard it as unreasonable. I want to leave out the words: or by any person acting under the authority of any such person. Those words have a very wide scope. I want somebody from the Government Front Bench to explain how the Government limit the extension of the power at present contained in the words which I am seeking to delete. I can give a number of cases in which they might apply without any reason being adduced to explain it. I do not propose to take up any more time. I merely ask for an explanation.

§ The Attorney-General
The language used here follows the language in the Indemnity Act. I am sure the hon. Member will appreciate that there may be cases where in some emergency or other civilians have to be called in to assist in the performance of a duty under the authority or with the directions of the General Officer Commanding—for instance, to prevent a crime or assist with the evacuation of the wounded, or some other emergency of that kind—and if civilians are called in to help the Forces, and do help the Forces in good faith in 2875 connection with their duty, it is right that they should have the same protection as that given to His Majesty's Forces. That is why it is thought right to follow the language that has been used in this regard in previous Statutes.

§ Mr. Janner
I thought that was the case. In view of the explanation—and I appreciate the circumstances although I was not sure about the words—I beg to ask leave to withdraw the Amendment.

§ Mr. Mikardo
I beg to move, in page 2, line 2, to leave out "or purported to be done."
This, again, is a question of degree iii the powers of indemnity. It seemed to me and to my hon. Friends who have put down this Amendment that the words "or purported to be done" leave the width of the powers practically unrestricted. Here, again, we simply must take into account the points made by my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) in moving a previous Amendment, that we ought not to allow ourselves to be open to that charge of totalitarian behaviour and suppression of individual liberties which we make, and readily make, against some other countries. In exactly the same way we should avoid such things. I mince no words, and I am not afraid of mentioning names, and if the Russians took some Mongolian citizens out of Mongolia from October, 1944, to March, 1948, without any trial and without any charges, I know what we should say.
One of the characteristics of the all-powerful police State to which we readily object is the relation between the State and the individual. The State takes powers in its actions against the individual which it denies to the individual in his actions against the State. It seems to us that if these words "or purported to be done" are left in, they leave an area of discretion of action to be covered by immunity which is so wide that the citizen within the community will have almost no protection against the power of the State. For example, it immunises the sort of action in which a sergeant picks up four people, disarms them, strips them and throws them into a camp—as happened a few weeks ago, and was afterwards 2876 indignantly denied until it was afterwards found to be so.
I have no doubt that the Front Bench may reply—it may very well be their reply—that one has to frame these powers reasonably widely and use them with discretion—and, in fact, use them only to carry out the purposes to which the Committee has agreed. Indeed, in his reply on previous Amendments the Attorney-General seemed to suggest that, when he said that if the intention of this House was violated in the exercise of the powers under this Bill, this House would doubtless have something to say about it. The fact is that in many of these matters the Government propose and the man on the spot disposes. I would not dare to say for one moment that all the actions which have been carried out in recent months by the Palestine Administration and by the military in Palestine are such as would have the unqualified blessing of the Colonial Secretary or of the Foreign Secretary. Indeed, I could quote many actions taken by the people on the spot which are in contradiction to the policy which has been laid down in this House by the Front Bench.
8.45 P.m.
I wonder if I may quote a single example in illustration of that—in illustration of the way in which somebody in Palestine may purport to do an action in the course of his duty which flies in the face of the policy of the Government, as laid down in the House and elsewhere? It is well know that the policy of the Government is to deny recognition to the ex-Mufti of Jerusalem, who has been described in this House many times as a criminal, a traitor and in other terms which I do not wish to mention. We have often been told that it is part of the policy of the Government that the ex-Mufti shall be excluded from Palestine territory. I think the Colonial Secretary will be surprised to know that the Army authorities in Palestine are seeking to protect the ex-Mufti from any criticisms whatever and, indeed, to make sure that no great difficulty is offered to his return to Palestine.
Two or three weeks ago there arrived in Palestine the British film "This Modern Age: Palestine." I have not seen this film and I know nothing about it, but I have been told by students of the subject, both Zionist and anti-Zionist, who have seen the film that they think it is a 2877 reasonably balanced exposition of the case. However, on 16th February an Army Order was issued from H.Q. Palestine which said the following: The film 'This Modern Age: Palestine' has been received in this H.Q. Its release is not authorised. It is considered that the subject matter of the film may offend the susceptibilities of the British soldier audiences for the following reasons":— Then three reasons are given, and the third is as follows: The Mufti of Jerusalem is vilified notwithstanding the fact that he will be returning to Palestine in the near future and that his attitude is, if only nominally, friendly to Great Britain If anyone wants to be the least bit cynical about it, the operative words in that expression are "if only nominally."
Here is a clear case in which somebody can "purport" to be doing a job. I have not the least doubt that whoever was responsible for this would say that this action was purported to be done in the execution of his duty. What is his duty? Is it his duty to carry out the policy of the Government or is it his duty to carry out the policy of somebody who sets the policy of the Government at defiance? Is it his duty to try and pretend as would appear from this document, that the Government are being completely hypocritical in their manner towards the ex-Mufti?
This shows how wide is this expression "or purported to be done" and how it enables people to take action in complete immunity. It shows how cynical it is possible for people to be in setting at defiance the interests, the desires and the wishes of the Government and of this House as a Parliament. It seems to us, notwithstanding any extent to which this expression "or purported to be done" may be Common Law, that the interests of civil liberties and the interests we all have in trying to ensure that we shall be protected against the accusations of totalitarianism—which we are the first to make when they are well deserved in other countries—suggest that all these things which can be done in the course of duty shall be clearly in the course of duty, and shall not be left to such a remote term as "purported" to be done in the course of duty.

§ The Attorney-General
I do not propose to follow my hon. Friend the Member for Reading (Mr. Mikardo) in his repeated references to persons who have been 2878 deported to Eritrea in order to avoid a repetition by them of grave acts of violence which they were believed to have committed, but which their own acts of terrorism made it impossible to establish by legal evidence. Nor do I propose to follow him in regard to the case to which he has referred, about which he must know I can have no knowledge. I must confine my observations to the wording of the Clause, and to the necessity of these words in the circumstances of the present case.

§ Mr. Mikardo
I do not think that this sort of conduct is becoming to such a distinguished luminary of the law—that is for the Attorney-General to get up and say that he has evidence that these persons committed acts of violence, when in fact His Majesty's Government have never been willing to put that evidence before a court of law. I think that is grossly unfair and incompatible with British justice.

§ The Attorney-General
My hon. Friend obviously did not hear what I said. I said that they were people believed to have been parties to grave acts of violence which, because of their own terrorism, it was impossible to establish by legal evidence.

§ Mr. Mikardo
That is what the Russians always say.

§ The Attorney-General
That is the reason why it is necessary to remove these gentlemen from Palestine to Eritrea.

§ Mr. Mikardo
That is what the Russians say when they remove people to Siberia.

§ The Attorney-General
I do not propose to follow my hon. Friend in discussion of that matter. The words "purported to. be done" are not only common form in all indemnity Clauses which have been passed by the House, but they are essential in order to create the protection which Clauses of this kind are intended to give. This is rather a complicated field of law, and I do not want to appear to be delivering a lecture about it; nor am I suggesting that I should be competent to do so. In general, there is no legal duty to do something which is illegal. If what was done was done in pursuance of a legal duty, then there would be no need to create a special indemnification in regard to it. A thing which is done in 2879 pursuance of a legal duty will be legal anyway, and we should not be taking up the time of the Committee in asking it to pass a Bill of indemnification about it.
The real point about indemnity Clauses is that when we are calling for firm and strong action in an emergency, we cannot expect those who are required to take action in these circumstances to visit a solicitor first to find out whether or not they are under a legal duty to do that which it seems to them it is necessary and expedient to do. The important thing in a Clause of this kind is that people should act in good faith, believing that what they are doing is in the course of their duties, although possibly feeling doubtful about it, but acting in good faith, believing it is something which it is necessary to do. If a man considers, in good faith, that it is his duty to act in a particular way, then, if it turned out that he made a legal mistake about it according to the strict letter of the law, what he did will none the less have been done in good faith and in the purported discharge of a duty. It is exactly that kind of act which an indemnity Clause is intended to protect. If we took out these words, the Clause would give no protection at all which does not exist under the ordinary law of the land.

§ Mr. Gallacher
In supporting this Amendment, I must first express my feelings of disgust that certain Members on this side must, whenever they get an opportunity, do a bit of "belly crawling" before the Tories of this country and the Tories of America. If hon. Members want to draw parallels, let them take the parallel of Northern Ireland or the Gold Coast, where they will get all they want. Obviously, if an act is done in good faith in the execution of a duty, it is something which can be a matter of judgment. But who does the purporting? What does this word mean? It means an act done and claimed to be done. Who is going to do the purporting? It is the man who commits the act. We can easily have someone in Palestine among our people who is viciously anti-Semitic, or someone who is viciously anti-Mufti or anti-Arab. That person, carrying out a particular task, can quite easily allow his feelings to affect him in such a way that he can commit a gross act of injustice against a particular individual 2880 or against his property. I would not mind if it were done in the case of Tory property, and it came from this side of the Committee.
We can easily have someone with a duty to perform who, because of a vicious attitude in one direction or another, carries out a duty to such an extent that it becomes an offence. But he can claim that he is doing his duty, and he is free from responsibility under this Clause for whatever he may have done. It seems to me that that is an utterly impossible proposition to make in such a situation as exists in Palestine at the present time, where feeling is so strong and passions are so high. Those responsible for this Amendment are not asking very much from the Government. They are asking that the Clause should read simply and clearly, "If done in good faith in the execution of his duty." I do not see how it is possible for the Government to ask for anything wider than that. It gives them all that is necessary, and it can be decided whether or not a man has done his duty. Surely the man responsible should know, when he has carried out a job, whether he has done his duty, or has exceeded his duty. If he has exceeded his duty, there should be no indemnity. I urge very strongly that these words be taken out of the Clause, which will be so much better without them, and that Russia should be taken out of this discussion.

§ Major Legge-Bourke
I am sorry that the Attorney-General did not take the opportunity to protest a little more strongly about the points put to him by the hon. Member for Reading (Mr. Mikardo), which he has repeatedly put before the Committee. I for one am getting a little bit weary of them. The hon. Member so often seems to try to impute that British troops and the British authorities in Palestine are either anti-Semetic or anti-Arab. Throughout their time in Palestine, the British troops and authorities have consistently done their best to avoid taking either side, and they have tried to keep law and order and to obey the orders they have been given from this country and from the Commander-in-Chief in Palestine.

§ Mr. Mikardo
I am sure that the hon. and gallant Gentleman would be the last to want to do a colleague an injustice 2881 even though he is on the other side of the Committee. When he says that I have imputed motives against British troops in Palestine, may I remind him, first, that I did not say any such thing on this occasion, and, secondly, that prior to last Friday I had not taken part in any Debate or made any speeches about Palestine at all, and so could not have imputed any such motives?

§ Major Legge-Bourke
The hon. Member has, on occasions, asked questions in which the implication was quite clear. I hoped that the learned Attorney-General would champion the British troops for a change and have tried to show the Cornmittee and the world that the action which British troops have taken is not partisan. It is most important that it should go out from this House of Commons that the action which British troops have had to take is to the best of their ability, nonpartisan, other than their being loyal subjects of this country carrying out a very arduous and unpleasant duty.

§ Mr. Warbey
Is the hon. and gallant Gentleman trying to say that it is inconceivable that any member of His Majesty's Forces could in any circumstances do anything wrong?

§ Major Legge-Bourke
Of course I am not trying to say anything of the sort. The hon. Member knows perfectly well that the Army has its own law, and occasionally members of the Armed Forces who have broken that law appear before a court martial or are dealt with summarily by their commanding officers. I maintain, however—and I always shall maintain—that the standard of discipline in the Army is kept on a very high plane by that means. What is utterly wrong is that any hon. Member should give the impression, wittingly or unwittingly, outside, that this Committee believes that British troops at large can possibly be carrying on partisan action in Palestine. I maintain that it is utterly wrong to suggest anything of the sort.
It seems to me most important that we should realise that when there is terrorism abroad in a country some action is often vital, and the most important thing to do is to take action. It may be that it is the wrong action, and if one had had time to consider it, one would have taken other action, but very often the one thing to do is to take action. The 2882 Clause, as it stands, gives the power for that action to be taken, whereas, if everybody always had to wonder whether or not he would be within the exact drafting of the Amendment, he might find that action was not taken at all, or was taken too late and disaster followed. I am glad that the Attorney-General has opposed the Amendment.

§ Mr. S. Silverman
There is one thing which the hon. and gallant Member for the Isle of Ely (Major Legge-Bourke) has said on which I should like to express my agreement at once. I think that British troops in Palestine during the last two and a half years have been subjected to a strain which very experienced and highly-trained troops might have been forgiven for not bearing without any indiscipline at all, and when one bears in mind that for the most part the troops in Palestine have been largely untrained troops without experience of war and of foreign service and of quite tender—18 or 19—years I think that on the whole their conduct has been exemplary, and that this country has every right to be proud of them. I agree with that, but we are not concerned with that in this Amendment.
We are concerned with the cases in which discipline has not been maintained. The hon. and gallant Member agrees that there are some cases. May I repeat again that I think that even if the number of cases had been greater, it would have been understandable, excusable and forgivable, but, nevertheless, cases have occurred. There was the case which followed a particularly atrocious crime committed by extremists on the Jewish side. In that case personnel of the British armed forces rode into Tel Aviv and fired indiscriminately into the streets and a number of perfectly innocent people were killed. It is a thing which happened, and there have been other incidents of the kind. What the Amendment is about is whether such a man ought to be covered by an indemnity merely on the claim that what he did he thought was in the execution of his duty. If it does not mean that, I do not know what it means.
While referring to the hon. and gallant Member, may I point out that in an earlier speech this afternoon he talked about "thugs." He described the people 2883 in Cyprus as thugs. So far as I understand it, the people in Cyprus arc some of the handful—and it is a mere handful—of the survivors of the worst massacre in all modern history. I think it a shame that an hon. Member should describe those people, however wrong he may have thought them for getting into Palestine, having nowhere else to go, and there being no other country willing to take them—however he felt about it, it was rather a shame that he should describe them as thugs. The only people in this story who are thugs are Nazis, Fascists and fellow travellers.

§ Squadron-Leader Sir Gifford Fox (Henley)
What about the Stern Gang?

§ Mr. Silverman
I am not talking about them. I have said repeatedly in this House that I regard them not only as lunatics, but as criminals, and if it gives the hon. and gallant Member any satisfaction for me to say it again, I say it again.
I have never known the Attorney-General to be consciously or deliberately unjust. Therefore, I am bound to think if he was unjust on this occasion, it was neither consciously nor deliberately. When he talked about the deportees in Eritrea as being people who have committed, or were suspected of having committed, crimes, although there was no evidence of having clone so, and went on to say that the fact that there was no evidence of their having done so was due to their own acts, he must know that there is no truth in that at all.

§ Mr. Silverman
There was not a word of truth in it. Those people were deported under regulations which were far more stringent than any other regulations of the kind used by any Allied country in the worst years of the war. I am not arguing the rights or wrongs of those regulations, but it is difficult to see how any regulations could have gone beyond them. I do not know whether the Attorney-General has taken the trouble to read them, but if he can spare half an hour in what must be a very busy life to read them, he would get some profit by doing so and by seeing how far arbitrary action can go. These people were deported under those regulations as being persons who might by their 2884 associations, beliefs and various expressions of opinion that they had made from time to time, somehow or other been concerned in a terrorist act. There was no charge against them at all, and I think it is wrong for the right hon. and learned Gentleman to refer to them in precisely those terms. They were no more guilty of any offence than any internee under Regulation 18B in this country during the war was guilty of any offence. The parallel is exact.
I can see that if we are to have an indemnity, it must be real. I can see that what a man does in the execution of his duty may not need an indemnity at all. He can only become liable if he exceeds his duty and only then may he require an indemnity. If these words "purported to be done" were no wider than to cover that kind of case, I would be quite content to leave them where they are. I think they are wider, particularly when we remember Subsection (4). They are wide enough to cover far more than excess of duty and acts done in good faith, believing that they were in the execution of duty, although in fact they were not. To protect acts of that kind would be quite right and I should have thought these words went beyond what was necessary to effect that purpose.

§ Mr. Pritt
I have listened with appreciation to what has come from the other side of the Committee praising the conduct of the troops. I respectfully agree. The troops are the working class in uniform. I ask the Tories to remember that fact when the men put off their uniforms, and when they are discussing these men as not working, or not working hard enough or for long enough, or for taking part in a strike. They are just the same people.

§ Mr. T. Reid
I wish to take up the point raised by the hon. Member for Reading (Mr. Mikardo) who said it was wrong for the authorities in Palestine to censor a certain film. It was a film of the history of Palestine. I do not know the film in the least. I understand that it was censored because among other things it vilified the Mufti. I am not now expressing any opinion about the Mufti, but after hearing what the hon. Member said I think that the authorities acted rightly. The Mufti, rightly or wrongly, has a great influence in Palestine. If the film ran him down and there was a big Arab audience in the theatre, accidents might happen.

§ Mr. Mikardo
My hon. Friend completely misunderstands the situation. There can be no question about Arab audiences. The film was allowed to be shown to Arab audiences. It was banned to audiences of British soldiers.

§ Mr. Reid
If so, that is another matter of course. I was going to use this story against the hon. Member to illustrate my own experience in the East, shortly after the Moplah rebellion in South India. A film was sent round showing what happened during the rebellion. It was pretty gruesome. In one of my capacities I had the right to censor the film. There was another official in another part of the country, and he, in his discretion banned that film because there were many supporters of the Moplahs in his area, and a lot of people who suffered from them. He banned the film and I did not. In my district there was no need to ban the film. That story illustrates what the Clause is meant to provide against. When this Bill is passed, diverse acts like those referred to, done in good faith, could not be impugned.
9.15 p.m.
The Attorney-General said that without this word "purported" an officer who had to carry out some odious duty might have to run round to a solicitor to find out if he was acting legally. Not only that, but a solicitor would have to be handy while the shooting was going on. An officer without legal training or even an officer with legal training would often be in doubt whether he was acting within the jurisdiction which he had. It is, therefore, necessary to have the word "purported,"otherwise in an emergency administration might be paralysed. I therefore support the Clause as it stands and will vote against the Amendment.

§ Mr. Janner
The arguments in respect of this Amendment are almost unanswerable. The illustrations given by my hon. Friend the Member for Reading (Mr. Mikardo) indicate that steps can be taken in the purported execution of duty which are quite outside the scope or intention of the Clause. Nobody on the Front Bench would suggest that the Army order to which my hon. Friend referred could be consistent with anything which had ever been said since the termination of hostilities by any Minister on the Front Bench or any of his colleagues. 2886 There is no question at all that we have been told time after time that the ex-Mufti was one of the bitterest enemies of this country and was in no circumstances to be allowed to go into Palestine. I have not seen the actual reference to which my hon. Friend directed our attention, but if that is so—I have no reason to believe that it is not so—it illustrates that "purported to be done in the execution of duty" is a very dangerous term.
My right hon. and learned Friend says that these are regular terms. If they are regular terms, they ought to be incorporated in every section of the Bill which refers to them. However, I would draw his attention to the Bill itself. If I may throw in an aside, my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was mistaken in what he thought was in the Bill. There is no reference to this in Subsection (4) ——

§ Mr. S. Silverman
I did not say there was.

§ Mr. Janner
—and it does not cover any act which purports to be done in the execution of duty. Subsection (4) shows that His Majesty's Government do not think it necessary that there should be a certificate by a Government Department and consider that anything done in the purported execution of a duty should be sufficient evidence.
My right hon. and learned Friend cannot have it both ways. If Subsection (4) is correct and by Subsection (4) he feels that this ought not to extend to acts purported to be done in the execution of duty, what on earth is the use of putting it into the Subsection we are talking about? We cannot get a certificate and we cannot get the normal procedure adopted in accordance with the Bill in respect of an act "purported to be done" and it appears that that was very rightly omitted from Subsection (4) because it would be carrying the position much further than it ought to be carried. If my right hon. and learned Friend cannot do anything tonight, I appeal to him to do something about this before the Report stage. While there may be some cases in which purporting to do something in the execution of a duty is justified, there may be very many cases in which a very bad advantage would be taken of such an expression.
2887 I want to say to one hon. Member who imports into what anyone says in respect of a Palestinian matter the idea that that person has some kind of animus against our troops, that that is the very last thing in the world anybody on either side of the Committee wishes either to express or imply. We are dealing with cases of people who are committing offences and who are being protected against what would otherwise be an offence. Perhaps that is an explanation of why Subsection (4) was omitted.

§ Mr. Mikardo
I have had no encouragement from the Attorney-General to consider withdrawing the Amendment. Three points have been made against it by my hon. Friend the Member for Swindon (Mr. I. Reid), by the hon. and gallant Member for the Isle of Ely (Major Legge-Bourke), and by the Attorney-General. It would probably be more charitable to my hon. Friend the Member for Swindon if I did not refer to his contribution to the discussion. As to the remarks of the hon. and gallant Member for the Isle of Ely, I think he does the Army a great service, and I am sure they recognise it, by defending their actions and their honour, but he sometimes appears to me to have a degree of hypersensitivity which leads him to defend his gallant friends when no attack has been made on them. It is not in the least true that I have ever made any suggestion in this House, or imputed anti-Semitism to the troops in Palestine. Indeed, such criticisms that I have made have been always of the civilian administration of Palestine and not of the troops. The two examples I gave in my speech were cases of the censorship and of arrests without trial, both carried out by the civil administration and not by the military authorities.
The Attorney-General could very easily have induced me to withdraw this Amendment, but he said something quite outrageous and when he reads it tomorrow he will regret it. He said he would not follow me in the question of the 291 persons detained without trial, and then proceeded at once to follow me. Having proceeded to follow me, he then said some things which were patently untrue and which conceded the point I made. He said that these persons were arrested without trial and had been detained for 3½ years without trial because it was clear 2888 they had committed some kind of terrorism and that they had by their acts of terrorism destroyed the evidence for it. I would ask the right hon. and learned Gentleman what acts of terrorism took place before 1944 to which he refers? He need not lean over to the Secretary of State for the Colonies because he cannot answer the question, for there were none.

§ Mr. Stanley
The murder of Lord Moyne.

§ Mr. Mikardo
The murder of Lord Moyne took place outside Palestine, as the right hon. Gentleman knows very well.

§ Mr. Stanley
It was done by Jews who came from Palestine.

§ Mr. Mikardo
If the right hon. Gentleman is suggesting that these 291 people all murdered Lord Moyne, and were implicated in the murder, and that by that fact they destroyed the evidence, I would say that I am sure the right hon. Gentleman will recognise that the description of the reasons given by the Attorney-General for the arrest of these people does not coincide with the murder of Lord Moyne; that is to say, the murder of one individual outside Palestine could not of its own action have removed the evidence, and could not be described as terrorism which itself removed the evidence of the terrorism.
Compare this with what happens in some totalitarian countries. How often have we heard it said that people have been arrested in such countries because they were engaged in a conspiracy against the State, such a sly conspiracy that it was impossible to get evidence to bring them into a court of law. Those words are always looked upon, and rightly, with suspicion when they come from certain parts of the world, and the Foreign Secretary has rightly protested to the Governments concerned about them. The words which the Attorney-General used tonight about the Palestine Administration are a parody or a precise copy of those words. It therefore seems to me that if one whose legal sense is so pure can be so readily defiled in this matter, there is a real danger in the width of the immunity given by this Bill, and a real need to restrict that width of immunity.

§ Mr. Janner
I beg to move in line 7, to leave out "on or after that day," and to insert: or on the first day of August, nineteen hundred and forty-eight This is an Amendment of some considerable importance, and one on which a definite decision should be taken. We have been told in this House, time without number, that our troops are to be evacuated before 1st August. We have now received an assurance in the Bill that the relinquishing of the Mandate will be done by 15th May. There is a sufficient time between 15th May and 1st August to carry into effect all the provisions necessary for evacuating our troops from Pales-time. Everybody in this Committee is anxious that the troops should be taken out as speadily as possible. I hope that long before 1st August we shall have been able to do what we intend to do in that respect.
If one were speaking about 15th May or some date close to it it might be that an Amendment of this nature should not be accepted. The Clause as it stands is vague. There are some tremendous powers being given in it which can be exercised against individuals, or which will fail to protect large numbers of individuals who might be completely innocent. I am asking the Committee to say that they do not think that an unlimited time should be given within which these powers should be exercised, because the implication, apart from anything else, is that the troops will not be out by a certain date, and that some troops will still be left there. I do not think that that is the intention of the Government. Therefore, I think that to leave the extended time to 1st August is to go to the full limit in laying down the period during which these powers can be exercised, and which is providing for the removal of our troops from Palestine by a specific date which is sufficiently far advanced.

Mr. Creech Jones
I must ask the Committee to resist this Amendment. It will be our firm endeavour to get all the troops out of Palestine by 1st August. As I have already said, we are well up, so far as the schedule is concerned, but it could happen—and this matter was discussed in the House last Friday—that, by accident, all the troops might not be out of Palestine by 1st August. Therefore, it is 2890 important that there should be some discretion in this Clause and I hope that on those grounds the Committee will reject the Amendment.

§ Mr. Warbey
I hope we shall have a somewhat fuller explanation than we have been given so far of the reasons for opposing the Amendment. When the Colonial Secretary just gets up and gives us a couple of sentences, and imagines that in that way he has disposed of this whole matter, I do not think that that is treating the Committee with the respect that this matter deserves. The position is not so clear as the Colonial Secretary has expressed it. I recall what the Attorney-General said, I think on Friday, when we were discussing the general question of what state of affairs, what state of law and what state of sovereignty is likely to exist in Palestine after 15th May, after the termination of British jurisdiction. We had a long argument, which I do not think has yet been settled. We had various different views about who would exercise sovereignty in Palestine from 16th May onwards.
I was struck by one principle which the Attorney-General laid down on that occasion, and that was that the juristic sovereignty in Palestine would be exercised by whoever was there and established effective authority in Palestine. I am quoting from memory, and if I am wrong the Attorney-General will, no doubt, correct me. According to the Attorney-General, who is the legal adviser to the Government, that will be the position in Palestine. On 16th May British troops will be present, and the British administration—not a British civil administration—but British troops will be present in Palestine over large areas and exercising authority. They are representing, in fact, the only de facto sovereign power in Palestine itself, unless, as now appears entirely unlikely, the Palestine Commission has in the meantime arrived in Palestine with the backing of the Security Council.
In view of what has happened over the week end, in view of the fact that the American volte face has placed the whole Palestine situation back into the melting pot, in view of the fact that it has now added confusion to existing chaos, all we can now be certain about is that the effective force and authority in Palestine, from 16th May onwards for an indefinite 2891 period, will be that of the British Forces in Palestine. From 16th May onwards they are going to exercise that sovereignty. They are going to be the sovereign power in Palestine under abnormal conditions, and with a very abnormal rule of law—a rule of law in which this act of indemnity that we are now asked to pass will be operative, and in which there will be no effective protection for the citizens in Palestine against any wrongful thing that may be done by any black sheep in the British Forces.
That is to say that, from 15th May onwards, there will be something very like a totalitarian regime, at least a military dictatorship. [Interruption.] In respect of law, there will be a military dictatorship in Palestine, and nothing else. That will he the situation. I challenge the Attorney-General or any other hon. Member to deny that effective law in Palestine from 15th May onwards will be that of a military dictatorship. It is most important, for the sake of the honour of this country and our scruples about democratic principles, to know for how long that military dictatorship will last.
I wish to remind the Committee of something said by the Foreign Secretary early this afternoon when he intervened in the discussion on Clause 1. With respect to the British position in Palestine and in the Security Council, he said that up to 15th May we are so implicated in Palestine, as the Mandate requires, and with our troops, that we must maintain a neutral attitude. He added that whatever change may be made by other countries, we cannot change: we remain neutral. We continue the attitude of neutrality that we have maintained up to now, but he continued, after 15th May we shall he out. I want hon. Members to notice the date which the Foreign Secretary used. After 15th May we shall be out and then the situation will be different. That implies, I suggest, that we shall then be free to take a new attitude to the Palestine question in the Security Council and elsewhere.
It is rather remarkable that the date selected by the Foreign Secretary for that statement was 15th May and not 1st August, because we shall not be effectively out of Palestine, freed from our implications in Palestine, until the British 2892 troops are finally withdrawn from Palestine. If that were the intention of the Government, then why did not the Foreign Secretary say 1st August? Why did he say 15th May? I should like to know whether or not this is an indication that, in view of the fact that the partition decision has now been shelved and, in effect, destroyed, in view of the fact that the Foreign Secretary has won a brilliant diplomatic triumph at Lake Success, there is to be a change of British policy in respect of Palestine after 15th May? Is there to be a change which will say that in certain conditions we shall retain our troops in Palestine?

§ Mr. R. A. Butler
Since eight o'clock only one person from this side of the Committee has taken part in the Debate. If we are now to debate general policy in Palestine, I wish to reserve the right of my hon. and right hon. Friends to take part in a general Debate on this issue. If that is in Order, we give notice that we shall take part.

§ Mr. Warbey
Further to that point of Order——

§ The Deputy-Chairman (Mr. Hubert Beaumont)
The point of Order was directed to me. I agree that I have allowed a considerable amount of latitude to the hon. Member, but he must now confine his remarks to the Amendment under discussion.

§ Mr. Warbey
I completely bow to your Ruling, Mr. Beaumont, but I was seeking to show that there was need for the Amendment which my hon. Friend has moved, and that there was need for an Amendment which would fix a precise date for the termination of this abnormal rule of military dictatorship in Palestine. That is what I was seeking to do.

§ The Deputy-Chairman
The hon. Member, like other hon. Members who preceded him, is tending towards a Second Reading speech rather than a speech on the Amendment.

§ Mr. Warbey
I entirely agree, and I accept your Ruling, Mr. Beaumont. I did not wish to make another long Second Reading speech, but because, perhaps, of the changing events in regard to Palestine, the whole of the Debate on this Bill from day to day and from hour to hour has been very much like a Second Reading Debate. Personally, I should be 2893 only too happy if it could be confined narrowly within the limits of Order and——

§ The Deputy-Chairman
The hon. Member now has the opportunity of setting that example.

§ Mr. Warbey
Thank you, Mr. Beaumont. What I was putting before the Committee was the view that this Amendment is necessary in order to set a precise term to the period during which it will be possible for a regime of military dictatorship to be the effective authority in Palestine. That is really the issue. [Interruption.] I appreciate support by hon. Members opposite. Therefore, I am asking the Committee to support this Amendment in order that we may have it absolutely clear that there will be no doubt that this military dictatorship will come to an end on 1st August and that British troops will be withdrawn from Palestine on that date and will not remain any longer in that country.

§ The Attorney-General
The hon. Member for Luton (Mr. Warbey) may well be an authority on those forms of Government which he described as military dictatorship, but I think it is right to assure the Committee that there is no question at all of any military dictatorship on the part of His Majesty's Forces existing after 15th May in Palestine. My right hon. Friend said this afternoon that we should be out of Palestine by 15th May. What my right hon. Friend was referring to was the fact and the law that, on that date, we shall be out of Palestine as the government of Palestine, and the best assurance that that will be so, and that the Government entertain no idea of departing from the policy which they have laid down in this matter, is the Clause which this Committee has already adopted, which provides in terms that this Government's responsibility for the Government of Palestine will cease on 15th May.
There is no question at all of any juristic sovereignty of British troops after that date. British troops, between 15th May and 1st August, may or may not be the only effective authority in Palestine. One hopes that will not be so, but, in any event, they will not be purporting to exercise, nor will they be entitled to exercise, the power of general government or of sovereignty in Palestine. Their rights will 2894 be limited to doing that which may be necessary to promote and facilitate their own safe withdrawal from the country. It is the intention of His Majesty's Government to assure that that withdrawal is completed by the 1st August. It is possible, and this is why we do not think it is right to insert that date in this Bill, that, at the last moment, something may happen to delay the departure of a small party of troops for a few days.
It might be that a section of troops was expecting to he embarked on 1st August and for some reason or other—a storm or breakdown in transport for example—they could not be got away until a day or two afterwards. We have to contemplate that possibility and not tie ourselves too much within the iron framework of particular dates. That is why we are not able to agree to this Amendment. In making that clear I desire to say that it is the full intention of the Government to give up the responsibility for government in Palestine on 15th May and to withdraw the whole of our troops by 1st August.

Colonel Dower (Penrith and Cocker-mouth)
I have a certain amount of sympathy with this Amendment to fix a definite date, but to pursue it is really splitting straws. Anyone who has had the task, even in a small way like myself, of having to move troops, will realise that very often at the last moment all kinds of questions may arise. We might in fact be requested by the powers that be to leave behind a clearing up party or whatever it may be, in order to do the job properly. We should not be inflicting our presence upon the people who ask us to do that job. We have heard the Secretary of State for the Colonies give a definite assurance that his intention is to remove all the troops, but there might have to be a few left over to finish the job properly.

§ Mr. Low
There is one matter on which I should like clarification. I understood that this Amendment sought to deprive troops or officers of the indemnity which this Clause gives them after 1st August. The hon. Gentleman who moved this Amendment and his hon. Friends, in a discussion as to whether troops should or should not be out of Palestine by 1st August as the definite date, agreed when the right hon. Gentleman said on Friday 2895 that it might not be possible. What they are trying to do now is to say, "Even though we agree, as we did on Friday—" [Interruption.] Oh, yes, the Amendment was negatived without a Division. What hon. Members are trying to say now is that though some troops may be in Palestine——

§ Mr. Low
Perhaps the hon. Gentleman will allow me to finish my sentence—although some troops may be left in Palestine after 1st August, they shall not have the benefit of the indemnity. That is what this Amendment is trying to do and nothing else.

§ Mr. Janner
I do not think that my hon. Friend is entitled to draw that inference. Instead of leaving this matter in an indefinite state, I am anxious to get a definite date by which our troops will be out of Palestine. If we intend to get our troops out by 1st August, I do not see why we should not, in fact, evacuate by July. If there are any parties left, let us get them out by 1st August. If we say, "after a certain date," it may be years, or even tens of years. All I am asking is for a date when we will see that all our troops are out, so that we may know that the intention will be carried into effect. I appreciate the assurances which have been given.

§ The Attorney-General
I beg to move, in page 2, line 13, at the end, to insert: or (c) on or after that day and before the withdrawal from Palestine of the said forces, for the protection in Palestine of the life or property of any British subject: This Amendment is intended to make quite clear that the indemnification extends not only to acts done in connection with the withdrawal of British troops and stores, but also to the protection of British civilian lives and property. It really meets the object which I think was intended in an Amendment put down by the hon. and learned Member for Daventry (Mr. Manningham-Buller)—in page 2, line 13, at end, insert: or for the protection of the life and property of a British subject before the withdrawal of His Majesty's forces. We felt that was a little too wide, and, therefore, we sought to meet the same point by our Amendment.

§ Mr. Manningham-Buller
I should like to thank the right hon. and learned Gentleman for meeting the point we had in mind in putting down the Amendment to which he referred. I do not think that this point was covered in the Bill originally, and it is proper that the right of indemnity should extend to acts done in protecting British lives and British property. This is an improvement, and I think it now makes the score 40-love.

§ Mr. Manningham-Buller
I beg to move, in page 2, to leave out lines 14 and 15.
We should like an explanation of the object and intention of this, proviso. The indemnity has been the subject of considerable discussion, and the Government have, rightly, not qualified it at all. However, by this proviso it would seem that the indemnity is of no effect if, on behalf of His Majesty, it is desired to bring any civil or criminal proceedings. It seems to me a little curious that there should be this exclusion, particularly when in line 17 one sees that the indemnity does not, in any event, apply to proceedings before courts martial. I should be grateful if the right hon. and learned Gentleman could explain why this exception is made in lines 14 and 15.

§ The Attorney-General
These words also follow the language of the Indemnity Act, 192o, their object being to enable His Majesty, if so advised, to take proceedings, either against civilian officials or against soldiers in respect of, for instance, misappropriation of funds or other criminal acts, and to take those proceedings, not only in courts martial—which as the hon. and learned Member pointed out, are exempted from the indemnification Clause —but also, if need be, in civil courts at home.

§ Mr. Manningham-Buller
Surely, the indemnity could not apply to cover the misappropriation of funds, because that could not possibly be an act done in good faith or in the execution of duty. If that be so, why should this proviso be inserted?

§ The Attorney-General
To tell the hon. and learned Member the truth, that was exactly the point about which I inquired myself. I think, myself, it is very possible that these words are not needed, and that the indemnification could not arise. However, there seem to be two views about it. 2897 We have had this form of words in previous indemnification Clauses, and it was thought safer to stick to them, but I am inclined to agree with the view indicated by the hon. and learned Member.

§ Mr. Manningham-Buller
I am grateful to the right hon. and learned Gentleman. Perhaps he would look at the matter again. It would be much better to have it tidied up, otherwise it might act as a precedent for the future. In view of his observations, I beg to ask leave to withdraw the Amendment.

§ The Attorney-General
I beg to move, in page 2, line 14, after "prevent," to insert: the institution of any proceedings in respect of anything clone before the twenty-sixth day of February, nineteen hundred and forty-eight, or. This Amendment is to make clear that the indemnity only operates to protect Acts done in the necessarily confused period immediately preceding and following our own termination of jurisdiction in Palestine, and we have taken the date as the introduction of the present Bill.

§ Mr. Mikardo
I beg to move, in page 2, line 21, to leave out Subsection (4).
This Amendment, like some others that have been considered by the Committee, raises the question of indemnity. Once again, it deals with the question of the width of the indemnity. Returning to what has been raised many times today, we all agree that indemnity is necessary in the confused times for those remaining in Palestine, but we all equally agree that it would be wrong for that indemnity to be wider than is necessary to provide proper protection for them. As will be seen, Subsection (4) provides that so long as anybody can get a certificate for any act, which is carried out, that certificate covers him if the act is in the execution of his duty. I am bound to say that, since the Amendment was put down, the point has been met very largely by the proposed Amendment of the Secretary of State for the Colonies—in page 2, line 21, leave out "Government department" and insert "Secretary of State or the Admiralty."
It seems to me that it is not quite so serious if, in order to get his indemnity, 2898 the person has to go to the Secretary of State or the Admiralty.
As the matter originally stood, it meant that any corporal could give indemnity to any lance-corporal, or any sergeant could give indemnity to any corporal, and that seemed to be extremely wide. Notwithstanding the advance in the matter which has been made by the proposal of the Secretary of State for the Colonies in his Amendment—a proposal which, when he comes to it, I shall, in copying the technique of the hon. and learned Member for Daventry (Mr. Manningham Buller), claim as 15-love for our side as well—I want to put to the Committee that it would be a very great deal clearer if Subsection (4) were left out altogether and, in point of fact, the onus were upon the person who carried out an action, done or purported to he done in the course of duty, if there should be legal action, to establish that that was in fact the case.
I repeat that I am not a lawyer, but it seems to me that the legal effect of this Subsection is that if a man is sued for an action which he has carried out, and if his defence is that under Subsection (2) of this Clause his action was done or purported to be done in the execution of his duty, instead of having to demonstrate and adduce some evidence of his having believed it to be necessary in the execution of his duty, all he has to do is to come along with a certificate and he is relieved of what would otherwise be a legal responsibility of establishing the basis of his action. I should be grateful for correction if I am wrong.

§ The Attorney-General
This Clause is virtually the same as that contained in the Indemnity Act, 1920. We felt that there was no reason to depart from that precedent in the unprecedently difficult circumstances of the present situation. The Committee may think that it is not unreasonable, in the circumstances such as will exist during this difficult period in Palestine, that it should be for the Crown, through the Secretary of State, to say what is the duty of a person in the service of His Majesty. The niceties and refinements of the legalistic position are all very well, very proper and desirable in more normal circumstances, but here, where the exact limits of the legal duty involved may be the subject of a great deal of argument in one court after 2899 another, we think that it is better to leave the matter in the hands of the Secretary of State, who is responsible to Parliament. I can assure my hon. Friend that these certificates will not be given lightly, and that it will be the responsibility of the Secretary of State to satisfy himself in each case that it is proper to give a certificate. In these circumstances, my hon. Friend may think that the vigilance of Parliament and the controlling action of the Secretary of State will be adequate for the protection of the interests of the subjects affected by these certificates.

§ Mr. S. Silverman
I do not think that the Attorney-General has made a satisfactory answer. I should have thought that this Subsection was so widely drawn as to make the rest of this Clause virtually unnecessary. The Subsection says that anything is right which the Government Department concerned says is right. That is very wide indeed. It means that in any case where an investigation might prove to be awkward to the Government, or in any case in which the evidence is evidence they do not wish to be disclosed, all the Government have to do is to issue a certificate that it was done in the execution of duty, and that is the end of the whole matter. That seems to be very wide indeed, and altogether too wide. The protection given by the Clause without the Subsection is sufficient. All the man has to do is to prove that what he did was done in the execution of his duty, and that is the end of the matter. If he cannot do that, he can say, "Well, I thought it was," and that is the end of the matter. If he cannot do either of those things, and if he can say, "What I did was, in any case, done in good faith for the general purpose for which I was employed in the country," then again he has a complete defence to any action no matter how illogical it was.

§ Mr. Stanley
Is it not a fact that the last two instances which the hon. Gentleman has quoted are not covered by Subsection (4), and he would have to give proof of them?

§ Mr. Silverman
No, I think the right hon. Gentleman is mistaken. I was coming to that point, and I will deal with it now. If we look at the second part of Subsection (4) we see that he has not even to prove his good faith. The second part 2900 of Subsection (4) puts the onus of proving the absence of good faith on the person complaining, which, of course, is an impossible onus to discharge. To prove a negative is difficult enough in any circumstances, but to prove a negative about the state of a man's mind is absolutely impossible. Surely, if there was no objection to the rest of the Subsection, the objection to the second half of it would be overwhelming. Why in the world should a man who is before a court in the first place because he has done something which cannot be justified be given a complete defence provided only he satisfies the court that what he did was done in good faith? Why should he not accept, at any rate, the onus of proving that what he did was done in good faith? It cannot be a very difficult onus for him to discharge. He has only to go into the witness box and say so, and submit himself to cross-examination by anyone bold enough to think that he will break down under cross-examination and prove out of his own mouth that he had some ulterior motive. Here we put the onus all the other way and in most difficult circumstances.
Before I was interrupted, I was saying how complete was the protection. I am not complaining of that. I am not against the Clause. I can see that in the circumstances a Clause of indemnity was absolutely necessary. I concede that at once, but I say that without this particular Subsection, the indemnity is complete. We begin by having to prove that something wrong was done. Unless something wrong was done no indemnity is required. When we have succeeded in proving against the defendant that something wrong was done, then he is still excused if it was done in the exercise of his duties, or in the purported discharge of his duties, or in good faith. The cases that would fall outside those three hurdles must surely be very few?
Why in the world need we add that Subsection, which virtually removes the jurisdiction from the court altogether and vests it in an undefined Government Department and not even the chief of the Department? I do not know whether the Amendment has been accepted or not or whether it is going to be accepted or not, but in the Clause as drawn and unamended a junior clerk in the appropriate Department presumably can exercise the authority of the Department, issue a certificate 2901 and oust the jurisdiction of the court altogether. I say that while it is absolutely necessary that there should be a sufficient indemnity and the indemnity Clause should be wide enough, it is amply wide enough without this Subsection, and at least the man who relies on his good faith might undertake the onus of proving that he acted in good faith.

§ The Attorney-General
Perhaps I might add a word. It is not correct to say that this Clause ousts the jurisdiction of the court altogether. Assuming the Committee accept a later Amendment, which the Government are prepared to accept, it will be provided that what was done was done "in the course of duty," and not merely purported to have been done in the course of duty. If we did not have this Subsection, there would be serious risk of long litigation right through the hierarchy of the courts to decide what the exact limits of jurisdiction were. If we have it, it will be for anyone to show, or to seek to show, that it was done in bad faith. My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) says that it is impossible to do that, but he will know that it is the general, if not the invariable, practice of English law to throw the onus as to good faith, the absence of which is usually described as malice, on the person who alleges that good faith does not exist. We propose to follow that practice in this Clause. I hope that in those circumstances——

§ Mr. Silverman
If my right hon. and learned Friend is saying that that is the law anyhow, he does not need this Subsection.

§ The Attorney-General
It is often the case that one puts into a Bill provisions which may not be necessary, but which make it abundantly clear.

§ Mr. Silverman
Why not leave it out?

§ The Attorney-General
I am not prepared to leave it out, because I want to make it clear that we shall consistently follow the practice of throwing the onus of proving bad faith on those who allege it.

§ The Attorney-General
I beg to move, in page 2, line 21, to leave out "Government department," and to insert "Secretary of State or the Admiralty."
2902 This Amendment, which adopts the spirit of another Amendment, is to make it clear that a certificate cannot be given by a minor official, but must be given by the Secretary of State or the Admiralty.

§ Mr. R. A. Butler
I wish to thank the Government for putting down an Amendment to trump an Amendment put down by us. This, in fact, is the fifth case in which the Government have accepted the spirit of an Amendment put forward by this side of the Committee and I think we can claim it as "game and set."

§ Mr. Mikardo
I do not think we should allow the right hon. Member for Saffron Walden (Mr. R. A. Butler) to get away with it, because this Amendment accepts two Amendments, one in the name of the right hon. Member for Saffron Walden, in line 21, to leave out "a Government department," and to insert "one of His Majesty's principal Secretaries of State"; and another, in the names of my hon. Friends and myself, in line 21, after "by," to insert "the principal officer of." I wish to share the honour on this point, and to join with the right hon. Gentleman in thanks to the Government.

§ Mr. Cecil Poole (Lichfield)
I appreciate that the Secretary of State can issue a certificate and that the First Lord of the Admiralty or the Board of Admiralty can do so, but I do not know whether the Admiralty is a competent body to issue anything at all. I would like to know whether the wording "or the Admiralty" is correct in this connection, or whether it should be a specific Minister in charge of the Admiralty. Could we have an answer?

§ Mr. Low
I want to put again the position of British troops in Jerusalem. It is a matter of the greatest importance. Am I right in saying that the indemnity in this Clause will not cover British troops in Jerusalem after 15th May? They might be kept there for many of the reasons mentioned by the Under-Secretary, or for other reasons. If our troops are in Jerusalem after 15th May and become involved for any reason whatsoever that we cannot 2903 foresee at the moment, in trying to protect any of the Holy Places—we are all worried about that position—will they be covered by the indemnity? I understand that they would not be covered. If I am right, that would be a direct inducement to them never to interfere in anything that was happening in the Holy Places, however serious it might be. I am not arguing whether they should or should not become involved in disturbances at the Holy Places, but I should like an answer from the Attorney-General in order that I might get the position clearly in mind.

§ The Attorney-General
The hon. and gallant Member is quite right. The indemnity would not extend to any action taken in the Holy Places unless it was taken in connection with our withdrawal of troops and for their protection and safety.

§ Mr. Stanley
By his answer, the Attorney-General has raised a very gloomy vista for some of us of what may happen between 15th May and 1st August. As far as I can see, the indemnity would not cover a case where British troops were at a street corner and, seeing either an Arab attacked by Jews or a Jew attacked by Arabs, intervened to save the life of one or other of them and committed some injury or caused some casualty in the course of that intervention. Are we to understand that that is the text of the Clause and that for the whole of the three months no British soldier will be able to interfere even with an act of mercy without the risk of doing something not covered by the indemnity?

§ The Attorney-General
I would not like to express any final view in answer to the right hon. Gentleman's question. I apprehend that it may well be that, in order to protect themselves and to ensure their own safe withdrawal, His Majesty's troops will have to preserve and maintain peace in the course of their duty in the area in which the troops actually are at the time.

§ Mr. Pickthorn
Surely the Attorney-General is not beginning to slide away from what he said, I should have thought correctly, before. Surely, none of us dare even imagine the circumstances that will arise, still less to act as if we were a competent court after they have arisen. So far as we can see, there is indemnity for British troops who are still, rightly and 2904 under the authority of the British Government, in Palestine, because there will be authority for what they do and for what may be shown afterwards to have been tactically necessary for the defence of themselves or for their withdrawal. Surely it is no use the Attorney-General trying to persuade the Committee to think that if the troops like, out of the kindness of their hearts, to protect the Holy Places or prevent murder, or rape, or what not, it would be because it would somehow come into the tactical necessities of their situation. If the Committee allows itself even to look down that avenue we are going to be landed in a situation which will not be defensible in any court of law or in any international forum.

§ The Attorney-General
I did not attempt to suggest anything of the kind, nor, if the hon. Gentleman had listened with care to what I said, would he have thought I suggested it. I said it might well be in the course of duty for British troops to put down breaches of the peace in their own area. It would be in the course of their duty if it was necessary to suppress breaches of the peace in order to preserve their safety and to facilitate their withdrawal.

§ Mr. Henry Strauss (Combined English Universities)
I wish to put one point to the Attorney-General. I am not certain whether he dealt with it in a previous speech in reply to the hon. Member for Nelson and Colne (Mr. S. Silverman). If he will look at Subsection (4) as now amended, he will see the word "sufficient" where it says: …shall be sufficient evidence of the matter so certified. Does he say that that means "…shall be irrebuttable evidence of the matter so certified"? The hon. Member for Nelson and Colne assumed that the word "sufficient" there would mean "irrebuttable." While I do not wish to express any opinion of my own on whether it does or does not, it is a matter on which the Committee would like to have the authoritative view of the Attorney-General.

§ Mr. S. Silverman
I am grateful to the hon. and learned Member for the Combined English Universities (Mr. H. Strauss) for raising this point. I certainly thought the word "sufficient" meant "conclusive," and if "conclusive," therefore "irrebuttable." A large 2905 part of my argument would have been irrelevant except for that interpretation. I think the right hon. and learned Gentleman thought so too. If "sufficient" only means "prima facie," that is a totally different matter.
I would like to say one word about the point raised by the hon. Member for Cambridge University (Mr. Pickthorn). It seems to me that this is the dilemma in which we have been debating for the past two days, and I do not want to debate it again. We really cannot exercise jurisdiction and renounce jurisdiction at the same time. If we want to retain jurisdiction, we must not terminate it. If we terminate it, we must not grumble at the consequences. I should have thought that once jurisdiction had been terminated, we were not in a position to say what was a breach of the peace or to interfere to prevent one. We have no jurisdiction at all except in the limited case to which the Attorney-General referred when he said that if a general state of disorder was so marked as to amount to a danger to the safety of the British troops themselves, then they would have the right to interfere to prevent that much of the disorder but no more. That is the position in which we leave ourselves when we terminate our jurisdiction and provide no other jurisdiction—when we leave the house free and ready for an incoming tenant without taking care to see that there is an incoming tenant or without having a notion who he might be—but it is no good grumbling about if the result is unsatisfactory. The whole position is unsatisfactory, as some of us have been trying to say of all of Friday and all today.

§ Mr. Ivor Thomas (Keighley)
I should like to draw the attention of the Committee to the language of Subsection (5). It will be noted that it makes careful reference to "Dominion." A little while ago the Government deliberately changed the name of the Dominions Office to that of Commonwealth Relations. I am glad to see that the Under-Secretary of State for Commonwealth Relations is present. Moreover, this Subsection makes reference to the Dominion of Ceylon. The term "Dominion status" was very carefully not used about Ceylon a little while ago and the Secretary of State had to use a circumlocution to explain that the status of Ceylon would be what we used to denote by "Dominion status." Without 2906 any explanation the old term comes in. That may be quite right, but it is a little curious, and I hope the Government will give a clear lead in this matter. It is important not only to those of us who have to do a good deal of speaking about the Commonwealth, but the term "Dominion status" has a high emotional content, as we have learned in recent years.

§ Lieut.-Colonel Lipton
Subsection (4) of Clause 2, as amended, still seems to indicate that whereas anyone in a Government Department outside the Admiralty must be a Secretary of State before he can issue a certificate, the Admiralty, or any person acting on its behalf, may issue this certificate of indemnity. The point was raised by my hon. Friend the Member for Lichfield (Mr. C. Poole), and I was not quite clear as to what was the answer, if any. Here is another example of the. Admiralty being a law unto itself as compared with other Departments, and perhaps my right hon. and learned Friend could say who will be the person in the Admiralty equivalent to the Secretary of State in another Government Department competent to issue a certificate under this Subsection.

§ Lieut.-Colonel Lipton
On a point of Order, Mr. Diamond, I do not know whether it is within your recollection that I addressed a question to the Front Bench and it looked at one moment as if someone would answer. Would you allow an opportunity, if anyone on the Front Bench desires to take advantage of it, to deal with the point I raised?

§ Mr. S. Silverman
Further to that point of Order, Mr. Diamond, may I suggest respectfully that it would be convenient to provide an opportunity for an answer to some of us; for instance, the question raised by the hon. and learned Member for the Combined English Universities (Mr. H. Strauss) which, unless it is answered, leaves the whole meaning of the Clause in doubt.

§ The Temporary Chairman
The point raised by the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) and 2907 supported by the hon. Member for Nelson and Colne (Mr. S. Silverman) is not a point of Order. It is not for me to say whether the Government choose or do not choose to answer questions put to them.

§ Mr. H. Strauss
Would it be a point of Order, Mr. Diamond, to ask whether the Government's failure to answer is due to the fact that they do not know the answer or is it merely discourtesy?

§ The Temporary Chairman
That also is not a point of Order.