HC Deb 22 October 1952 vol 505 cc1122-49
Mr. Paget

I beg to move, in page 2, line 17, at the end, to insert: Provided always that no one shall be punishable within the United Kingdom for an offence based upon racial discrimination. Clause 2 (1) provides that The service courts and service authorities of a country to which this section applies may within the United Kingdom, or on board any of Her Majesty's ships or aircraft, exercise over persons subject to their jurisdiction in accordance with this section all such powers as are exercisable by them according to the law of that country. that is the sending country, the country whose troops come here.

Among the countries to whom this Measure will apply—and as soon as it applies to anybody it applies to the Dominions who are set out in Clause 1 (1, a)—is the Union of South Africa. The Union of South Africa has a number of penal offences, based upon their principle of apartheid, which make various forms of association between people of different races a criminal offence because their races are different.

9.0 p.m.

It seems to me that the effect of this Measure is to create circumstances in which people could be punished in this country for offences based upon racial discrimination. I am sure that it would not be the wish of anybody in the Committee, on any side, that anybody could be punished in this country for an offence based upon a law of racial discrimination. Therefore, I hope that the Home Secretary will accept the Amendment.

Mr. S. Silverman

I agree with the principle that my hon. and learned Friend the Member for Northampton (Mr. Paget) has said is behind his Amendment, and I should have thought that the Committee could accept it without debate. It is difficult to see how we could justify any other conclusion. I am, however, a little unhappy about the wording of the Amendment, which says: Provided always that no one shall be punishable within the United Kingdom for an offence based upon racial discrimination. That could be read in the exact opposite sense to what my hon. and learned Friend intends: that provided the offence is based upon racial discrimination everything is all right.

I think that what my hon. and learned Friend meant to refer to was a thing which is only an offence because of legislation about racial discrimination which makes that an offence, which otherwise would not have been one. As I am quite certain that that is what my hon. and learned Friend meant, I should like to support it, but for the reason I have explained I enter a caveat about the wording.

Sir D. Maxwell Fyfe

Again, I recognise fully the spirit which animates the Amendment. I should like to draw the attention of the Committee to some difficulties which arise, and I think that when hon. Members have considered them they will appreciate that they are practical difficulties and not merely debating points.

Hon. Members will appreciate that the agreement provides that the authorities of the sending country shall be able to exercise within the receiving country all criminal and disciplinary jurisdiction conferred on them by the law of the sending country. That was the term in the agreement to which right hon. Gentlemen opposite committed themselves in making the agreement. Therefore, in so far as the Amendment seeks to limit this power, it would mean going contrary to the agreement. For that reason, apart from any others, I could not advise the Committee to accept the Amendment.

The hon. and learned Member for Northampton (Mr. Paget), who moved the Amendment, said that he has in mind the difficulties that would arise if the South African forces—I am not sure whether he mentioned the United States forces, but I think he had in mind chiefly the South African forces—were to operate in this country laws based on colour discrimination.

I confess that I cannot see a number of practical points arising when there are persons of different colours in a visiting force, but that is an argument that, I agree, is a difficult one to advance because, of course, it may simply be that my imagination is not working as well as that of hon. Members on the other side. But I have that feeling.

I do not want to go outside the limits of the Amendment, but I think I know what the hon. and learned Member has in mind and, from a practical point of view, I should not have thought that trouble was likely to express itself in the kind of offence with which we are dealing in the case of visiting forces, because it must be remembered that the primary right is concerned with offences committed on duty, in which case I do not think this problem would arise very much.

I envisage that the hon. and learned Member had in mind offences dealing with persons of the same forces. I have tried to visualise the situation, but I do not think it is so likely in a fighting unit as it would be in the ordinary walks and ways of peace. Of course, I speak with great diffidence in a matter on which I am not qualified to speak, but the general impression which I have—and I hope that all quarters of the Committee will agree with me—is that in a fighting unit these difficulties tend to disappear rather than to be exaggerated. That, I believe, to be a fair summary from the experience of a great many countries in the last war.

The last point which I would press on the hon. and learned Gentleman—and I think it was in the very experienced mind of the hon. Member for Nelson and Colne (Mr. S. Silverman), if I may say so—is that the words "based upon racial discrimination" are inappropriate and that legislation in such a way would be ineffective. I have considered the matter and discussed the agreement with those who advise me, and I feel that this is a term which lacks the certainty sufficient to make it a basis for legislation.

Nevertheless, as I indicated earlier, I would rather not put it on the more narrow point, although I believe it is a point which would make it difficult to put the Amendment into effective legislative operation. I ask the Committee to consider the two points which I made earlier. First, this Amendment would involve our going contrary to the agreement, which is a very serious and difficult point; and secondly, a point which gives more hope of satisfaction, that any knowledge which I have of military units suggests that this attitude of mind is much less likely to occur than has been suggested.

I sympathise with the fears of the hon. and learned Gentleman and of the hon. Member for Nelson and Colne, but I find it very difficult to see how they can be met without breaking the two points which I have made—that of going contrary to the agreement and that of achieving an effective legislative result. I ask the Committee not to accept the Amendment. Indeed, I ask the hon. and learned Gentleman not to press it, on the understanding that this view goes out from the Committee: that we earnestly trust that the new endeavour which is envisaged in the Bill will rise above such things as have caused the fears which animate the hon. and learned Member for Northampton and his hon. Friend the Member for Nelson and Colne.

Sir Ian Fraser (Morecambe and Lonsdale)

I think the Home Secretary must be right when he suggests that it is extremely unlikely that the situation apprehended by hon. Gentlemen opposite could ever arise. It is hard to believe that any visiting force coming from South Africa would contain different races between whom there is any legislation such as hon. Gentlemen have in mind. That is hardly credible.

Therefore, while I understand the theory which moves them, I think the Home Secretary must be right in saying that it can hardly be a practical issue. I think it must be in the minds of hon. Gentlemen opposite that there is a law in South Africa, for instance, which inhibits marriage between white persons and black persons. But that is mutual. It is not discriminatory in the sense that it makes it a crime for one; it is a crime for all.

In that sense it is not discriminatory at the expense of one rather than the other, but is a demonstration of a way of life adhered to by both those groups of people who live in South Africa. I plead with hon. Gentlemen to accept the Home Secretary's view that this is hardly a practical issue, and that no good, so far as our relationship with South Africa is concerned, could possibly be done by pressing it.

Mr. S. Silverman

I had not intended to trouble the Committee again, but I find the last intervention a little disturbing. There is not a law adopted, I understand, by the coloured population of South Africa which makes them punish any of their members for marrying a white person. Apart from that the hon. Member for Morecambe and Lonsdale (Sir I. Fraser) has provided for the first time in the discussion an instance of how this matter might really become practical politics here.

If a South African force were here and a member of one colour married a citizen of this country who was of the other colour, he might very well be prosecuted in the courts of his own force for an offence against South African law. We should then have a situation of a man perhaps suffering imprisonment in our country for something which certainly does not apply in our law and which I am sure all of us in the Committee hope will never be a crime under our law.

The hon. Member has not realised how repugnant it would be to the moral sense of the whole of our community if people were made to suffer penal penalties in our country under laws like this one, passed by ourselves, for things which may be offences in their own country but which are not an offence or a moral lapse or anything to attract any kind of adverse comment according to our way of looking at things.

It is one thing to give visiting forces a power to exercise their necessary discipline among themselves: it is quite another to use our State machinery to apply criminal sanctions in matters which we do not regard as criminal.

Mr. Paget

I fully recognise the great difficulties which are involved. On the other hand, I must say, quite frankly, that I do not think the views expressed by the hon. Member for Morecambe and Lonsdale (Sir I. Fraser) have made it easier to withdraw the Amendment. What one has to recognise here is that if we pass this Bill unamended we are, for the first time in our history, making punishable in England, and with the assistance of our police forces, offences which are created only to maintain and support principles of race discrimination which every one of us abhors. To make these acts punishable for the first time in England is a serious matter.

9.15 p.m.

We are making them punishable whether they occur in England or not. A South African may have shown sympathy for the coloured cause in South Africa and have committed one of these offences while he was in South Africa, and then he can be arrested and tried in this country for that offence. But I recognise the very great difficulty both in drafting, in being able to define what one means, and in getting within the Treaty. We come up against it again and again.

Going back to a point which I made on Second Reading, I think that it is quite a wrong method to legislate in a general way, to give general effect to this treaty. We would have done far better to wait until we came to our specific Agreement with each of the N.A.T.O. countries and made the legislation necessary to deal with that particular Agreement. We should have been able then, by methods of negotiation, to avoid many of the difficulties which we are bound to bump into when we generalise. But in the light of the difficulties which, I recognise, are involved, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Paget

I beg to move, in page 2, line 22, to leave out paragraph (b), and to insert: (b) civilian personnel accompanying, and in the employ of the visiting force of that country and for the time being subject to the service law of that country otherwise than as members of its armed forces and who are not stateless persons nor nationals of any state which is not a party to the North Atlantic Treaty nor citizens of nor ordinarily resident in the United Kingdom and Colonies. This is simply a drafting Amendment to tighten the Bill a little and to bring it within the terms of the treaty. The words which I have set out in the Amendment are the words which are put in the treaty. They are tighter and more limiting words in the definition of civilian personnel than the ones in the Bill.

Sir D. Maxwell Fyfe

Are we not on the Amendment to line 26?

Mr. Paget

I am so sorry. I thought it was the Amendment to line 22. Are you not calling that Amendment, Sir Charles?

The Chairman

I have not selected that.

Mr. S. Silverman

On a point of order. I know that it is out of order to ask the reasons for your action, Sir Charles, because the selection of Amendments is wholly within the discretion of the Chair. But may I draw your attention very respectfully to the fact that Clause 2 (2, b) makes the powers of the Bill applicable to a wide group of persons who are not members of the visiting forces? I suggest, with respect, that the Committee might very well like to have the opportunity of considering whether the exclusion from jurisdiction which the Bill provides ought to apply to any other persons than the persons who are actually members of the visiting forces. This raises a really very important principle.

The Chairman

I thank the hon. Member for making a correct statement of the rules of procedure. I have not selected the Amendment and, of course, I do not give the reason; but I assure the hon. Member that I have given very careful consideration to all the Amendments and I have come to that conclusion.

Mr. Paget

I apologise to you, Sir Charles, for my error. I beg to move, in page 2, line 26, at the end, to insert: but shall not include any person conscripted by that country subsequent to his arrival in the United Kingdom. I hope that this Amendment will be acceptable.

Sir D. Maxwell Fyfe

It might help the hon. and learned Gentleman to know that I am prepared to look at this point. I do not want to interrupt him or to suggest that he should not make his speech, but what I proposed to do when I was called was to tell the Committee the sort of difficulties which I have to face and then to say that I was quite prepared to look at this question and hoped to be able to find a solution along certain lines. I hope the hon. and learned Gentleman will not take it amiss that I have interposed to say this, because from my own experience it does sometimes rather change the tempo and tenor of one's speech if one knows that it is going to be of some effect.

Mr. Paget

I am extremely grateful to the right hon. and learned Gentleman, and I will say no more than that one did visualise the danger involved under the Bill as it stood, in that any of the countries who are parties to this agreement could have conscripted any of their nationals who had come here not as soldiers but as political refugees or anything else. Once they had been conscripted, under the terms of this Bill we could have been called upon to arrest and hand them over to their military authorities. Therefore, we feel that this question should be confined to people who are brought here as soldiers or as personnel and not to people whom the visiting country may make soldiers after those people have arrived here in a civilian capacity.

Lieut.-Colonel Lepton

I feel that one or two further comments are required on this Amendment, conditioned by the statement that the Home Secretary was good enough to make a moment or two ago.

My hon. and learned Friend has referred to the case of someone being conscripted after he had arrived in the United Kingdom, if he is still a national of the country to which the visiting forces may belong. The Home Secretary has indicated that he is going to try to find some formula or form of words which will go some way to cover the difficulty that my hon. and learned Friend has raised.

In his consideration of this matter, I would ask the Home Secretary whether he would also consider the possibility of the case of an actual member of a visiting force who may, for reasons into which it is not now necessary to go, decide to apply for political asylum here. It may arise out of some possibility of being punished for an offence based upon racial discrimination. When the Home Secretary considers this particular Amendment, he may be able to cover this risk. I do not know to what extent it is likely to occur, but it is something for which we should provide if we possibly can. There is always the possibility that such a case may arise.

We do not know what may be the internal political conditions or circumstances in any of the States with which we are associated in the particular legislation now under consideration, but it may well be that circumstances will arise in which persons actually serving in a visiting force may, for quite good reasons, seek political asylum here while they are still serving members of that visiting force. I ask the Home Secretary to be good enough to consider that possibility when he is giving consideration to the Amendment that has been moved by my hon. and learned Friend.

Mr. E. Fletcher

I am very sorry, and apologise to the Home Secretary for the fact that I was not in my place when he said, I understand, that he was going to give sympathetic consideration to this Amendment, but I was very glad to hear of that. It seems to me that this Amendment is intended to enshrine a principle which I am sure is as dear to the heart of the Home Secretary, as it is to the hearts of all of us on this Committee. I refer to the principle which was laid down in that famous decision by Lord Mansfield in Somersett's case, when he said that a person might come to this country as a slave, but he ceased to have the status of slavery when he came here, and automatically become free and entitled to habeas corpus.

The principle here is precisely the same. Whatever may be the status of American soldiers or forces of another country who come to this country as Service personnel, the matter is quite otherwise with persons who come to this country in a civilian status. They must have the same rights under English law as the slave Somersett had in Lord Mansfield's time, or as any other civilian, whether a British subject, a person of no nationality, or an alien might have. Therefore, I think that the Home Secretary is undoubtedly doing right in ensuring that this famous and historical principle of our law is continued and adapted in this new framework.

Sir D. Maxwell Fyfe

I am sure that you personally shared my pleasure, Sir Charles, at the reference by the last speaker to the first Scotsman who was Lord Chief Justice of England. I fully had in mind the great monuments of our legal system to which the hon. Member referred.

The hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) raised a new aspect of the problem. I am sure he will not mind when I say that I want some time to consider the point he has raised, and I certainly shall do so.

Coming to the main points regarding the Amendment, I promised that I would explain to the hon. and learned Member the difficulties at the moment. I am sure he will appreciate them. On the drafting of the Amendment, I want to ensure that it should refer to members of a force and not merely to civilians. But there is another point. We need not discuss niceties, but I think he will appreciate that it is necessary not only to amend Clause 2, but also Clause 3; otherwise, the person in question would be excluded both from the jurisdiction of the court martial of the visiting force and, in Clause 3 cases, from our own courts also, which is something I do not think the hon. and learned Member had in mind. He will also appreciate that the term "conscripted" does lack precision when one has to consider the question of reservists and the like.

Another point I want to cover is to make a reliable and practical distinction between proper and improper enlistment into visiting forces. The hon. and learned Member and everyone in the Committee will appreciate that we might have a case concerning a Rhodes scholar. I do not know the age limits, but that is the sort of case I have in mind—someone receiving education in this country. It might be not only proper but highly suitable that he should carry out his military training by being attached to a unit here. I want to consider that sort of case. Another case I have in mind is that of a person who is a national of another country but living here, who might either want to fulfil his military training or a period of training on reserve by being attached to a visiting force.

9.30 p.m.

I do not think these are far-fetched ideas, and I should not be happy in my own mind unless I had really considered them. I have considered this already, and, as I say, I should like to give it further consideration, because it may be that one has to introduce the conception of consent, and the hon. and learned Gentleman will appreciate that, to do that with any propriety and efficacy, it has to be very carefully drafted indeed.

I have wearied the Committee with these reasons only to show the hon. and learned Gentleman that I have considered this point, and not to put him off merely for the sake of doing it. I should be grateful if he would give me an opportunity to consider the matter further, and withdraw his Amendment.

Mr. Paget

I was not vain enough even to imagine that I could draft a satisfactory provision to deal with something as intricate as this, and I drafted the Amendment merely to raise the point. I am most grateful for the right hon. and learned Gentleman's assurance, which I accept gracefully, and I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The Chairman

The next Amendment I call is that in page 2, line 37, in the name of the hon. and learned Member for Northampton (Mr. Paget).

Mr. Paget

This Amendment is consequential on my Amendment in page 2, line 34, to leave out from "deemed," to "in," in line 35. I do not know whether you will allow me to deal with them both at once, Sir Charles?

The Chairman

I did not realise that. I had not selected that one. I thought the earlier one stood by itself. The only criticism that I had of it was of its grammar—but otherwise I had not selected it. I think that the Amendment in line 37, the Amendment in line 38, and the Amendment in line 42, are all on the same point.

Mr. Paget

I beg to move, in page 2, line 37, at the end, to insert: Provided always that nothing in this section shall prevent any person alleging that at the date of the sentence he was not a person subject to the jurisdiction of that court. I think I can put the point, and then the Home Secretary will tell us whether he feels that the previous Amendment is necessary. The point of this Amendment, I think, explains itself. Whilst this Clause provides that we must assume the propriety of the actions and sentences of these visiting forces, we certainly ought not to assume their jurisdiction which is given to them by this Bill, and, therefore, it should always be open to a man to say, "I was brought before this court. I was sentenced by the court. That is true enough, but I was not a person who fell within the definition of 'a member of the visiting forces or of the civilian personnel attached thereto'." Otherwise anybody could be brought before those courts—any citizen of this country—and, once he was sentenced, could not allege that he was not a person subject to the jurisdiction.

It may be that these words are superfluous, but I think it is very necessary to say that it shall always be open to the person to say, "I was an ordinary citizen of this country"—or "an ordinary visitor to this country"—"I was not within the jurisdiction of this court." When the Polish forces were in this country, some rather difficult habeas corpus applications occurred, and I myself think it is necessary to make this clear beyond doubt.

Mr. S. Silverman

Let me, first of all, draw the attention of my hon. and learned Friend to the fact that if the Amendment were made the Clause would be in direct conflict with Clause 11 (1) which gives to the visiting forces or the commander of the visiting forces the right to issue a certificate saying who is or who is not a person within the jurisdiction under Clause 2.

Mr. Paget

There is a Government Amendment down to it.

Mr. Silverman

I know there is a Government Amendment to it. I mean as at present drafted. With the Government Amendment the question arises whether the Amendment of my hon. and learned Friend is any longer necessary.

Before the Committee can fully judge whether this Amendment ought to be accepted it is necessary to consider what subsection (3) does. Subsection (3) is really an evidential subsection: it goes to what it is necessary to prove, and what shall be accepted as proven without the necessity, or indeed the possibility, of proof. It does some very surprising things, and it is necessary to consider them before we can possibly consider the merits of the Amendment.

In the circumstances of the subsection the said service court"— the court that has passed the sentence under which a man may be incarcerated in a British jail— shall be deemed to have been properly constituted. Why should it be deemed? It is a thing perfectly capable of quick proof. The person sentenced may be a person to whom my hon. and learned Friend's Amendment would apply; a person who was never subject to the jurisdiction at all; and he may come along and say, "The court which sentenced me was not properly constituted, even under the law of the sending country. The court ought to have had three members, whereas it had only two. The court ought to have had officers of certain rank, but the officers who constituted the court were not of that rank. The court was improperly constituted under the law of the sending country."

Why should he not be allowed to say so, and to prove it if he could? The Clause prevents him from saying so. The Clause says that once the sentence has been passed, though improperly passed, though passed by a court which, being improperly constituted, had no jurisdiction, even under this Bill; it cannot be challenged if the Clause is left unamended, and it must be deemed that the court which was not properly constituted was in fact properly constituted.

I can understand that kind of provision where the thing to be proved may be a troublesome thing to prove. But this is not troublesome. It is quite easy to say what the court ought to be in order to be properly constituted and, if challenged, whether it was or was not so constituted. I do not say it should have to be proved where it is not challenged, but where the man sentenced has challenged it, why should he not be able to prove the contrary if he can? Why should we go so far as to presume that because somebody has passed sentence he therefore has power to do so?

The subsection goes on: and the sentence shall be deemed to be within the jurisdiction of that court and in accordance with the law of that country. Suppose it plainly is not. Why should we pass legislation to prevent the competence of the court, the jurisdiction and whether what was done was done in accordance with the law of the sending country, from being challenged if it can properly be challenged?

It is in the light of those considerations that I commend this Amendment. I had put down an Amendment to leave out subsection (3), but it has not been called and I therefore cannot ask the Committee to delete this subsection now. It is a very important subsection, and if we are to have this kind of thing we ought to have some such Amendment as my hon. and learned Friend has in mind, to enable things not rightly done not to be supported without the capacity of challenge of any kind.

Sir Frank Soskice (Sheffield, Neepsend)

May I add one or two words in support of the pleas made by my hon. Friends? I am not sure what kind of proceedings in the United Kingdom courts are contemplated under the subsection, but I suppose that proceedings which would fall within its scope would be, for example, a civil action brought by a person who had been in prison pursuant to a decision of a service court of a visiting force and who was seeking to challenge the validity of the actions of those who imprisoned him.

An hon. Member has said that habeas corpus proceedings might be the same kind of case. If that is the kind of case, I would urge that the validity of the sentence should not, in fact, be conclusively assumed by reason of the fact that the person was sentenced by the court. That would be exposing a number of persons to dangers to which they ought not to be exposed.

I agree with what the hon. Member for Nelson and Colne (Mr. S. Silverman) has said, that, clearly, we must have some provision which would prevent unnecessary proof being furnished of the constitution of a service court of a visiting force, and that kind of thing, so as to cut out unnecessary procedure and evidence, but surely it would be sufficient for that purpose if the subsection provided, in effect, that the validity of the sentence, and so on, should be assumed unless the contrary was shown.

As the hon. Member for Nelson and Colne pointed out in his speech, and I respectfully venture to support what he said in that respect, if we leave subsection (3) in the form in which it is at present, that is to say, the proof being conclusive, it is prima facie in conflict with the Government's Amendment to Clause 11, with regard to the conclusiveness of a certificate furnished under subsection (1) of that Clause. I hope that the Home Secretary will think that there is some force in these contentions, or that the Solicitor-General, if he is to reply, may be able to give some simple answer which we have overlooked on this side of the Committee. If there is such an answer, I hope that the hon. and learned Gentleman will point it out.

The Solicitor-General (Sir Reginald Manningham-Buller)

This is a complicated subsection, and I think that the interest shown in it indicates that it has been carefully considered by the right hon. and learned Gentleman the Member for Sheffield, Neepsend (Sir F. Soskice). The debate on it has covered a field somewhat wider than that envisaged by the Amendment moved by the hon. and learned Member for Northampton (Mr. Paget). I would like to deal with the point raised in his Amendment first, before going on to answer the observation of the right hon. and learned Gentleman and the hon. Member for Nelson and Colne (Mr. S. Silverman).

The effect of the Amendment moved by the hon. and learned Member for Northampton is, if I understand it correctly from what he said, to ensure that it shall be open to a person to challenge the jurisdiction of the service court. Clause 2, as the hon. and learned Gentleman will appreciate, only applies to members of a visiting force and others who are not citizens of this country or of our Colonies nor ordinary residents of the United Kingdom, but who are, for the time being, subject to the service law of that country.

I think I can safely assure the hon. and learned Gentleman that the words that he desires to add to this subsection will become superfluous if the Amendment in the name of my right hon. and learned Friend to Clause 11 is accepted by the Committee. If that Amendment is accepted it makes it clear that the person concerned cannot be shut out from asserting that he was not subject to the jurisdiction of the service court.

9.45 p.m.

We have down Amendments to Clause 11, in page 9, line 40, to leave out from "be," to the end of the line, and to insert: sufficient evidence of the fact so stated unless the contrary is proved and in page 10, line 26, to leave out "conclusive evidence of that fact," and to insert: sufficient evidence of that fact unless the contrary is proved. When these Amendments are explained the hon. and learned Gentleman the Member for Northampton will see that we give the person concerned the right of showing that he is not subject to the jurisdiction of the service court of the country sending the visiting force.

The hon. Member for Nelson and Colne (Mr. S. Silverman) goes wider than that and says, "Why should we deem the court to have been properly constituted? Should not it be open to the person concerned to come to the courts of this country and challenge the constitution of the Service court of the country sending the visiting forces?" The right hon. and learned Member for Neepsend made much the same point. The answer is that once one comes to the conclusion, whichever way it may fall, that the individual is a member of a visiting force one will not really be complying with the spirit and letter of the N.A.T.O. Agreement if one gives that member of the visiting force, who is, ex-hypothesi, subject to the Service law of that country, a remedy over into the courts of this country.

The hon. Member for Nelson and Colne talks about the man not being able to question whether the court has been properly constituted, but the man would have the same rights of challenging it as would any other member of the force of that country. The hon. Member knows that under the law relating to courts-martial in this country a person who is subject to Army law can challenge the constitution of the court and question it without going to the ordinary court or even to the court-martial appeal court.

All the remedies will be open, under the law of the country sending the visiting force of which the individual is a member, once it is determined that he is subject to the Service law of that country. It seems to me to be right that once we have determined that question in that way the man's remedies should be under the law of that country and not in the English courts.

I think that is the answer to the points raised by the right hon. and learned Gentleman and other hon. Members opposite. The man has his remedies under the Service law of his country when it is established that he is a member of that force. It will be open to him as a result of our Amendments tabled to Clause 11 to challenge the certificate which asserts that he is a member of that force. He is not prevented by anything in this Clause from asserting—it is a very important issue—that he is not subject to the Service law of the country sending the visiting force.

I hope I have satisfied all hon. and learned Gentlemen opposite and that in the circumstances the hon. and learned Member for Northampton will withdraw his Amendment, bearing in mind that we shall have a further opportunity to consider the issue on Clause 11.

Mr. Paget

I am sorry that the hon. and learned Gentleman has not succeeded in satisfying me. I understood him to say that in principle he entirely agrees with what my Amendment says but he considers it unnecessary and superfluous because it will be dealt with by his Amendments to Clause 11. The hon. and learned Gentleman may be right, but I am not sure that he is. What Clause 11 provides is at present that a certificate should be conclusive as to whether a man is a member of the forces or not. The Amendment provides that a certificate should no longer be conclusive if the contrary is shown, but on the other hand the Clause which we are dealing with provides that where a man has been sentenced within the jurisdiction of the court, it shall be assumed that no certifiate there will arise.

The Solicitor-General

I think the hon. and learned Gentleman has misread Clause 2 (3). It says that Where any sentence has, whether within or outside the United Kingdom, been passed by a service court of a country to which this section applies upon a person who immediately before the sentence was passed was subject to the jurisdiction of that court in accordance with this section … there is nothing in the subsection to say he is deemed to be within the jurisdiction of the court. Now with the Amendment to Clause 11 there is nothing saying that the certificate shall be conclusive and, therefore, that always remains the issue to be determined. I hope I have put the matter right.

Mr. Paget

Supposing the person who has been sentenced is in gaol and he applies for a writ of habeas corpus. There is no certificate one way or the other as to whether he is a member of the forces. Does not Clause 2 (3) impede that application?

The Solicitor-General

I can answer that question quite shortly. I do not think that the latter part of subsection (3), which deals with the matters which are to be deemed, namely, that the court is properly constituted or that the sentence is in accordance with the law of the country, can arise, once it is established that the person upon whom sentence was passed was subject to the jurisdiction of the court at the time immediately before the sentence was passed.

Mr. Paget

I think probably that is so, but my Amendment was put down before the Amendment to Clause 11, and as an extra precaution. If the hon. and learned Gentleman really feels that that precaution is not necessary I will withdraw it.

Mr. S. Silverman

May I say at once that for my part I am quite satisfied with the explanation which the Solicitor-General has given about the point which my hon. and learned Friend raised, but I am not satisfied with his argument on the point that I raised. What he says about my point is that, provided a man who has been sentenced was immediately before the sentence, in fact, subject to the jurisdiction of the court, then there is no reason why the constitution of the court, its jurisdiction or its sentence as passed under the law of the sending country should be open to any more challenge than it would be in the case of a soldier in our own Forces before a court martial here.

There I agree, but the point is that we are dealing here with people who are perhaps many thousands of miles away from their own country and from their civilian courts, and our machinery and our police forces are to be used in order to carry out some at any rate of those sentences.

In the case of a member of our own forces, if he is charged before a court which is not properly constituted, or if he is charged before a court which is properly constituted but the court passes upon him a sentence not justified by the law of our own country, then it is perfectly true that the person may rely upon his right of appeal under the Courts-Martial (Appeals) Act, but he is not bound to; he can go to the civil court.

It is one of the most important principles of our own constitutional law that the military courts are not conclusive, and that if they exceed their jurisdiction or are not properly constituted under the law of the service within which they are operating the man can appeal to the civil court by way of mandamus, writ of prohibition or of habeas corpus, or in a variety of other ways so as to ensure that the civil law, at any rate in peacetime, remains supreme.

All that I am suggesting is that this subsection, as it is drawn, takes away from a person the right to challenge any of those things in any civil court. He cannot do it in the courts of his own country for reasons of practicability. There is no reason why even the case which the Solicitor -General has illustrated should be beyond challenge in the courts. The man ought to have the protection of some civil court, and since he is in our country and being incarcerated in gaol perhaps by our police and prison forces, obviously the convenient court is the civil court available to him in our country.

Nobody is suggesting that anything else should be challengeable in those courts except the question, if it is challenged, whether the service really was a court to which we intended to give jurisdiction, and whether the jurisdiction which was exercised was no more than the jurisdiction which we intend, by this Measure, to confer upon it. That is all. We are grateful to the Solicitor-General for the information which we were given, but I suggest that it failed to cover the point which I have made and which would give to a person within Clause 2 the protection of any civil court. We must rely, in those circumstances, simply and solely on the service courts, which our own soldiers would not have to do.

Sir F. Soskice

I thank the hon. and learned Solicitor-General for the explanation which he gave and which has entirely satisfied me, subject to one very slight point. Perhaps the hon. and learned Gentleman would be so good as to say he would consider it. Suppose there is a person who is, ex concessis, a member of the visiting force whose military code provides for his being sentenced to a period of six months for an offence. Suppose by some accident, misunderstanding, or some other reason, he is sentenced to a period of 18 months. As the subsection reads at the moment, there will be no way of his challenging the sentence. He could not sue out a habeas corpus. He would have to do the 18 months. I would like the hon. and learned Gentleman to give further consideration to the point whether, entirely in accord with what he has said as to the comity of law, he would take out the particular words which provide that the sentence shall be deemed to be within the jurisdiction of the court.

The Solicitor-General

I find it difficult to accept the proposition that where an error of that sort has occurred in connection with a service court of the country sending a visiting force to this country there would be no way under the service law of that country of getting that error corrected. I believe that in the vast majority of cases, for instance under the law relating to the Canadian forces, there would be ways of putting it right.

The principle one has to recognise here is that, if one is to carry out this agreement in relation to the later Clauses giving jurisdiction over persons who are subject to the service courts, one cannot, at the same time, say that there shall be recourse to the courts of this country where anyone can challenge whether the service court of the visiting forces has not exceeded its jurisdiction or been improperly constituted.

One has to decide one way or the other. If it is a member of the visiting force, he must have his remedies if an error takes place under the service law and, indeed, the civil laws of the country to which that person belongs. We should reach an impossible situation if there were recourse to the civil courts of the country in which the visiting forces for the moment happened to be.

10.0 p.m.

I ask the hon. and learned Gentleman to consider the position which would arise if our forces were in some country on the other side of the Channel. It would create a position of the greatest complexity if the sentences imposed by our courts-martial—for which there is a good deal of machinery for seeing that they act properly—could be brought before a foreign court on the question as to whether the court was properly constituted and the sentence properly passed. Therefore, much as I appreciate the point and the difficulties involved, there is no choice but to adhere to the present structure of the Bill as contained in this Clause.

Mr. Paget

The hon. and learned Gentleman was highly successful in convincing my two hon. Friends that I was wrong. Now he has been highly successful in convincing me that they were wrong. Therefore, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. S. Silverman

I beg to move, in page 3, line 6, to leave out from "section," to "if," and to insert "the Secretary of State for the Home Department."

The Clause gives certain powers to the Army Council, to the Admiralty and to the Air Council which are necessary powers to give to somebody if effect is to be given at all to this Clause. Therefore, I am not quarrelling with the Clause which gives them that power. What I am suggesting in my Amendment is that if our own forces under our own control are to be put in operation on the initiative of any authority of ours, it is much better that the authority which gives that sanction to the use of our machinery should be the Home Office rather than a service authority.

I can see that there may be two views about this because ex hypothesi we are dealing with members of the Armed Forces and by a parallel reasoning one thinks automatically of the Air Council, the Army Council and the Admiralty in such a connection. Since, however, what we are doing is to use our forces in order to make people in our territory subject to other people's courts, it is much better that the authority to do so should be a civil authority and not a Service authority.

Sir D. Maxwell Fyfe

I hope that the hon. Member will not add this additional labour to my duties, and I hope that, apart from that, I may convince him that it would be a difficult course to take.

As the hon. Member said, and I am quite sure that he appreciates the position, the object of subsection (5) of the Clause is to enable the Service police to assist the Service police of the visiting force in arresting persons who have committed offences against the law of the sending country. I want to make it clear—I am sure that the hon. Member appreciates it, but I am sure he will agree it is important that it should be made clear—that there is no application to the civil police, and it is undesirable that there should be. This is merely a Service matter.

The difficulty is that the Service police are under the control of the Admiralty, the Army and the Air Council and, of course, not of myself. Even if there were not another difficulty, which I am sure the hon. Member will appreciate in a moment, that would make the matter administratively very difficult indeed.

The other difficulty is that the hon. Member has impinged upon one of the few mystical conceptions that still remain in the prosaic realms of administration, because he has said in his Amendment: the Secretary of State for the Home Department. Secretaries of State, as the hon. Member will remember, are manifold but indivisible, and two of the Departments that he has mentioned are also headed by Secretaries of State. It would cause administrative confusion if we were to take this step.

The broad matter is that I think the Committee would agree that the control of Service police is better in the hands of the Service Departments and that it would be very difficult for me to come in and exercise this control. Therefore, while again appreciating the importance that the hon. Member attaches to the matter—and I am sure the whole Committee will agree with him in attaching importance to such assistance—I ask him not to press the point, because I do not see the administrative answer to the riddle.

Mr. S. Silverman

I am always willing to be accommodating if anything like reason can be shown, and perhaps, if the other anomalies that we have been upon the right hon. and learned Gentleman to deal with had been capable of even that degree of explaining, we might have got on a little faster. I do not desire to press the point further upon the Committee, and I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Mr. E. Fletcher

I want to say just one word about the Clause before we part with it, partly because it is the only opportunity I shall have of saying a word about an Amendment which I put down on the Order Paper but which has not been selected.

Clause 2, of course, is the Clause which enables foreign service courts to function in this country and is the Clause which legalises them. One of the curious things, it seems to me, that we are doing by legalising these foreign service courts and the sentences which they may impose is that we may be thereby legalising sentences of a kind which have long been abolished in this country and which may still be retained in other countries but which here are regarded as barbaric and archaic.

I notice, for example, that in the agreement there is a provision in article VII, paragraph 7, which bears on this, because it provides that. A death sentence shall not be carried out in the receiving State by the authorities of the sending State if the legislation of the receiving State does not provide for such punishment in a similar case. I understand that article to deal with the position which would arise if we abolished capital punishment in this country. The Home Secretary and other hon. Members will be aware that in the last Parliament a Measure was carried for the abolition of capital punishment. You will remember it, Mr. Thomas, and if it had not been for an opposite vote in another place, we should by now have abolished capital punishment in this country. Many of us hope that that may still be the case before long.

I ask the Home Secretary this question: in that event, what is there, as was certainly contemplated by this N.A.T.O. agreement, to make quite sure that other countries with visiting Forces here, who still retain the death sentence, shall be unable to carry out the death sentence in this country? As I see it, there is nothing in the Bill at present to implement the clear provisions of article VII (7) of the Agreement. I am sure the Home Secretary is following the point I am making, and it seems to me that it is a point which ought to have been dealt with in Clause 2. It was certainly one of the objects of the Amendment which I put down to Clause 2, page 2, line 27, to insert the words other than a sentence not permitted by the laws of the United Kingdom. That Amendment was not called, and all I can do is to put the point to the Home Secretary as forcibly as I can in the hope that, at a later stage of the Bill, if he concedes my point, he will himself introduce an Amendment to give effect to something which, it seems to me, quite clearly should be in the Bill, pursuant to the agreement.

It also seems to me that by parallel reasoning, precisely the same argument should apply in the case of punishments, such as flogging, which have been abolished under our Army Act and our military and naval Services code. They have been abolished on the ground that they are barbaric punishments which are offensive and obnoxious to modern standards.

Is it nevertheless intended that one of the things we are to do in the Bill is to allow foreign service courts to impose sentences of that kind and have them carried out in this country? Is that the intention?—because that is certainly the way in which I read the consequences of the Bill as it stands. It may be the intention that that should be so, but if so I am surprised, and I should have thought it was something which ought not to be in the Agreement and which ought not to be sanctioned by the Bill.

10.15 p.m.

Mr. S. Silverman

I wish briefly to support what my hon. Friend the Member for Islington, East (Mr. E. Fletcher) has said. Of course, the view can be taken that once we have decided to give jurisdiction to a foreign court in respect of certain persons, then we may wash our hands of the whole matter and say that anything done which we do not like has nothing whatever to do with us, that it is within the law of the sending country and that we need not bother our hearts, minds, souls, or consciences about it.

That is a possible view to take, but I should have thought it equally possible and more sympathetic to our way of looking at things to take another view, the view that we will give to foreign courts and foreign law whatever is necessary to enable them to carry out the agreement that we have made with them, but in exercising their jurisdiction they should not be allowed, on our soil, within our territory, to do things that would be morally repugnant to our own laws or to the public conscience of our own country.

A point has been made about offences which are only offences because of laws about racial discrimination. I do not know what is to be done about that. I think that everyone accepted the principle of the point made. My hon. Friend has now spoken about the kinds of punishment. He has mentioned corporal punishment. One can recollect others. There used to be what was called field punishment No. 1, which we have very rightly abolished. There is the question of capital punishment.

The laws of all countries are not the same. I should have thought it intolerable to us to have penalties inflicted in our territory for offences when we would not ourselves tolerate the infliction of such a penalty on our own forces. My hon. Friend is perfectly right about that.

I wish to say one other thing about the Clause as a whole. Almost everybody who spoke on Second Reading, including, I think, the Home Secretary himself, said that this was a difficult and complicated Measure that would require the most careful examination in Committee. Many of us welcomed that statement. On my side if the House we hoped that we would have an adequate opportunity in Committee of dealing with the matter Clause by Clause and line by line in order to ensure two things: one, that what we were doing was sufficient to make practicable the implementation of the defence arrangements which alone give rise to a Bill of this kind; two, to see that it did no more.

Clause 2 is probably the most important Clause in the Bill. I do not think that the Committee will feel that we have had a proper opportunity of examining it line by line and principle by principle. Therefore, one has to do it now in this complicated way on the Motion, "That the Clause stand part of the Bill." Many of us would have preferred to deal with the points separately and for the Committee to have had an opportunity of saying yea or nay about them specifically one by one. But since the Amendments were not called, one can only do it in this way.

I should like to have heard a discussion, and I should like the right hon. and learned Gentleman now to give us some answer, about why we need extend any of these powers to cover persons who are not members of visiting forces. Everyone can see the necessity of having some such powers as these if we are to have visiting forces at all, and everyone can see that if such powers are given they must cover the members of those forces. But why in the world should they cover anybody else? They do not in the case of our own forces.

Who are these persons? I am talking now about Clause 2 (3). Who are these persons who are subject to a foreign service law without being members of the foreign service concerned? We have had no explanation of any kind. During the Second Reading debate, there was a lot of discussion about the definition in the Clause of someone who is called a civilian component of such a force. The definition is hardly adequate. There were Amendments to make it more adequate. The Amendments were taken out of the actual agreements that have been made. We wanted to see them in the Clause.

We had no opportunity of moving them, but perhaps even now, before the Committee adds the Clause to the Bill, we can have some explanation of them. I should have thought that we should have done well, in giving these powers, to make certain that they apply to members of the visiting force and to nobody else. But if one feels compelled to go beyond those strict limits and enable the Clause to cover persons who are not actually members of the visiting force, then one ought very carefully and specifically to define who and what these persons and categories are.

The Clause does not do it. I do not know whether I carry my right hon. and hon. Friends with me, but in its present form I think that the Clause goes far beyond what is necessary to give effect to the defence arrangements out of which the Bill arises. I think that it even goes beyond the terms of the actual arrangements which are said to be those to which the Bill is said to give legislative force.

The Committee ought to be very careful about these matters. We are now extending powers without any guarantee, or indeed very much hope, of any real reciprocity. We are doing it in an unlimited and unrestricted way and applying these powers to a large number of undefined and, as far as I can see, undefinable persons. I hope that unless we obtain a satisfactory explanation on all these points from the Home Secretary, the Committee will refuse to add this Clause to the Bill.

Sir D. Maxwell Fyfe

I should like to deal, I hope with reasonable brevity, with the points which have been raised. On the first point raised by the hon. Member for Islington, East (Mr. E. Fletcher) it would not only be possible for this House—because everything is possible for Parliament—to change the law about capital punishment, but it would also be possible for Parliament to legislate, with regard to the agreement, that capital punishment should not be carried out.

On the broader point that the hon. Member raised, namely, the question of putting into force punishments of which we might not approve, the general difficulty which one has to meet is that the terms of the agreement leave the question of offences committed by service personnel to the law of the sending country. If the hon. Member will allow me to do it in this way, however, I should like very much to see in print the remarks that he made and to consider them. I promise that I will do that, because it may be that there are more nuances to what he has advanced than I appreciate at the moment.

On the point raised by the hon. Member for Nelson and Colne (Mr. S. Silverman) about persons other than uniformed personnel, I should remind him that it is possible, just as it might be with regard to our own military arrangements, that the law of the sending country may give service courts and authorities power over persons who may not be uniformed members of the forces. Therefore we have really three categories of persons which in ordinary language may be called uniformed men, camp followers and civilians. I am grateful to the hon. Member for raising these points, and again, I should like to consider them when I have had the advantage of seeing them in print and fully examining them.

With that assurance I hope that the hon. Gentleman will allow us to add this Clause to the Bill.

Mr. S. O. Davies (Merthyr Tydvil)

The Home Secretary must surely have had ample time to consider the object of this Bill. I share the misgivings of my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). The only logical action after what the Home Secretary has told us is that he should withdraw this Clause now, until he has had time to consider its extremely serious implications. They are so serious that one could take up a great deal of the time of this Committee in elaborating and working out the intentions of Clause 2 (2, b).

Putting it in a sentence, he might appreciate the fact that it is not only Clause 2—particularly subsection (2, b)—which hurts the sensibilities of many of the people of this country, but the whole Bill. It is an absolute outrage upon the sensibilities of proud Britishers. He should have considered the matter before the Bill was placed before the Committee.

Clause ordered to stand part of the Bill.