HC Deb 27 October 1952 vol 505 cc1627-35
Mr. E. Fletcher

I beg to move, in page 2, line 13, to leave out from "Kingdom." to "exercise," in line 14.

The object of this Amendment is to exclude from the operation of the Bill its present application to Her Majesty's ships and aircraft. This is not an Amendment on which we need to spend a great deal of time, and I hope the House will come to the conclusion that whatever may be the case for giving foreign service courts jurisdiction in our territory, it is difficult to make out a case for giving a foreign service tribunal jurisdiction—let alone exclusive jurisdiction as would obtain in certain circumstances—either on Her Majesty's ships or in Her Majesty's aircraft.

As far as I can see, there is nothing in the Agreement which requires the extension of the Bill from ordinary jurisdiction exercised on land to jurisdiction in Her Majesty's ships or aircraft. If, however, the Home Secretary thinks otherwise, we shall be interested to know whether he will be able to satisfy us that reciprocal arrangements will be made by other countries with regard to their ships, their aircraft and, in particular, whether the right hon. and learned Gentleman is satisfied that the reciprocal legislation in the United States, of which he is so confident, will apply equally to American ships and aircraft.

Lieut.-Colonel Lipton

I beg to second the Amendment.

6.15 p.m.

Sir D. Maxwell Fyfe

I hope that the hon. Gentleman will not press this Amendment, the effect of which is to exclude the jurisdiction of a visiting force in one of Her Majesty's ships or aircraft. On any mature consideration, I am sure it must be considered ancillary and incidental to what we are putting into effect.

I ask the House to imagine a contingent of the forces of a sending country being in one of Her Majesty's ships or aircraft. It is obviously essential that the commander of the contingent should be able to maintain discipline, and I cannot imagine how he could maintain discipline in the way suggested with less offence to the feelings of Her Majesty's civilian subjects, even on the most exaggerated view of the possibility of offence taking place. This is simply a small and necessary ancillary provision, and therefore I ask the hon. Gentleman not to press his Amendment.

Mr. Bing

I hope the Home Secretary will look at this again. If he looks at the so-called reciprocal legislation passed in the United States to which he drew attention earlier, he will see that there is no provision in it for the exercise of any jurisdiction in any United States aircraft or vessel. So that on the ground of reciprocity, in the first place, there is an argument, as things stand, for excluding the words.

Secondly, I do not see the circumstances which are envisaged. Not very large bodies of troops are carried by air, and therefore it would not seem necessary to court-martial them while actually in the aircraft. The reasonable thing to do would be to wait until the aircraft had descended at some spot within the territory where this might be administered and to hold a court-martial there. I can understand the necessity in war-time where transports are used for carrying troops. Indeed, in war-time it used to be a way of passing the time to court-martial people for offences committed previously. It does not seem desirable, however, when normally speaking they will be carried, not in transport ships, but by battleships of the Navy.

In maintaining the authority of the captain on a vessel of that sort, there is an argument for not having under him a body of people who do not owe any allegiance and are not in any way amenable apparently either to the discipline of the aircraft or vessel but who have to be prosecuted by some other court. So it would be sensible to provide that, where American or other forces were present, either in an aircraft or ship, they should come under the jurisdiction of whoever was the captain so that he would be entitled to maintain discipline over them in exactly the same way as over everybody else. Everyone knows that, both on an aircraft and on a vessel, far stronger powers of command need to be in the hands of the captain than in normal conditions on land. I hope the Home Secretary will look at this matter again, because it is highly undesirable to have in the Bill this provision which may interfere with the normal running of a battleship or aircraft.

Lieut.-Colonel Lipton

rose——

Mr. Speaker

The hon. and gallant Member has exhausted his right to speak by seconding the Amendment. He can speak again only by the leave of the House.

Lieut.-Colonel Lipton

If I may have the leave of the House, although I have already seconded the Amendment by standing in my place, I shall be most grateful.

It is, of course, possible to push the principle of extra-territoriality into the air and on to the sea, but it seems to me, in the light of the arguments that have been adduced, to be pushing the principle a little too far. Imagine the ridiculous position that could arise under the Clause as it stands if, for example, as could easily be the case, there might be one or two American soldiers travelling on a British transport where there might be three or four thousand British troops. If any trouble arose, notwithstanding the fact that there might have been only one or two American troops on the transport in question, the jurisdiction of the captain of the vessel, and of the O.C. Troops, would be immediately ousted by reason of the Clause as it stands. I hope that the Home Secretary will realise that we are not asking him to make a vast and unreasonable concession when we ask him to accept the Amendment.

Amendment negatived.

Sir D. Maxwell Fyfe

I beg to move, in page 2, line 26, at the end, to insert: Provided that for the purposes of this subsection a person shall not be treated as a member of a visiting force of a country if he became (or last became) a member of that country's forces at a time when he was in the United Kingdom unless it is shown that he then became a member of those forces with his consent. This Amendment is designed to meet a suggestion which was made in Committee by the hon. Member for Islington, East (Mr. E. Fletcher). Its effect would be that the courts and authorities of a visiting force would have, under the Clause, no power over a person who was conscripted into the visiting force against his will in the United Kingdom.

There are related Amendments in Clause 3, page 3, line 36, and in Clause 17, page 15, lines 31 and 38. I hope that this meets the point, and I am grateful to the hon. Gentleman for having raised the matter.

Mr. E. Fletcher

I am grateful to the Home Secretary for having accepted our suggestion. The Amendment entirely meets the point that we put in the Committee stage. It is a necessary provision and, as I think we recognised in the Committee stage, it really is an extension of the historic precedent set by Lord Mansfield in Somerset's case.

Mr. Bing

As one of those who pressed this matter, I express my gratitude to the Home Secretary for the Amendment. There is, however, one small point which I wish to query in relation to it. There is some slight difficulty in the wording. I do not know whether, when we make Amendments at this stage, they go back to another place where there is any opportunity of looking at the wording again.

People who are on the reserve may be members of the forces. Most of us are Z Reservists; we may be members of the Armed Forces who are at the moment simply on reserve. I do not know whether the right hon. and learned Gentleman would consider, instead of became a member of those forces … the use of some such words as "became embodied in those forces" or words which would record the fact that, although somebody might be a reservist and might be here today, he was not called up when he was outside the country.

I do not know that it is a very important point, but I call the Home Secretary's attention to it in case it is possible to alter slightly the wording to make it clear that it is the call-up in this country that is involved. Even though a man may be a reservist, like a Z Reservist, and liable to service, he may be technically a member of the forces, as many of us are.

Sir D. Maxwell Fyfe

I think that the last Amendment on the Paper deals with that point, but I will certainly look at it again, even though I think it is covered.

Amendment agreed to.

Sir D. Maxwell Fyfe

I beg to move, in page 2, line 37, at the end, to insert: () Notwithstanding anything in the foregoing provisions of this section, a sentence of death passed by a service court of a country to which this section applies shall not be carried out in the United Kingdom unless under United Kingdom law a sentence of death could have been passed in a similar case. It was suggested in the Committee stage that a visiting force should not in effect have power to impose a sentence unknown to United Kingdom law, and particular reference was made to capital punishment. It was suggested that article VII, paragraph 7, of the agreement, which provides that— A death sentence shall not be carried out in the receiving State by the authorites of the sending State if the legislation of the receiving State does not provide for such punishment in a similar case. should be written into the Bill. The Amendment meets the point, and it now will be written into the Bill.

Mr. S. Silverman

It cannot be denied that the words reproduce the words of the agreement, or something like them, and are ample to read into the Bill the literal terms of the agreement which was negotiated. Nevertheless, it does not afford the protection which the House, I think, would desire, because the words "in the United Kingdom" really take away the whole of the protection.

It means that with the Amendment drafted in this way, we can use our forces to arrest a man, that on our soil the Queen's Writ shall not run, that the offence shall be tried by a service court within service law and shall attract a capital sentence which is permissible under that law but not permissible under ours. The only thing that the Amendment does is to say that if all those conditions are satisfied, the death sentence may be carried out, but it must be carried out somewhere else. I doubt very much whether the House will think that that is what it intended to ask the Home Secretary to do.

Limiting the issue to the one point of the capital sentence, if we are excluding the jurisdiction of our own courts and are conferring on foreign courts on our soil a jurisdiction which, but for the Bill, they could not possibly exercise, surely what we want is that in doing that they should not have the power to pass sentences which would be repugnant to our law—not merely that they should have full power to pass sentences which we might regard in our way of looking at things as wholly undesirable and unjustified, but that, having done so, they should take them to Northern Ireland, or to Malta or back home, and carry out the sentence there.

I beg the right hon. and learned Gentleman, whose good will in the matter we all recognise, to consider whether in this form it is worth adding the Amendment to the Bill and whether he ought not to consider—I suppose it could be done now, if the Home Secretary wished, with the leave of the Chair, or, if not, in some other way at some other time—taking out the words "in the United Kingdom." In that event we could ensure that foreign courts on our soil which exclude our own jurisdiction do not in any case pass sentences of death in cases where we ourselves would not do so.

6.30 p.m.

Mr. E. Fletcher

I gather that the Home Secretary had intended to meet the point made in Committee, but I must say that I entirely agree with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) that the right hon. and learned Gentleman has not done so. If it was his intention to meet the point, very considerable criticism could be directed to the form of words used. I concede at once that the points I raised in Committee were twofold; they were concerned both with the death penalty and also with other sentences which at present are repugnant to our law.

The Home Secretary has said that by attempting to deal with the capital sentence he has introduced words which give precise effect to the strict terms of the agreement. But I am not sure even that is the case. I should have thought that the agreement contemplated that in any country which is a party to it and where capital punishment has been banned the agreement, in its spirit if not in its terms, was intended to provide that the sentence of death would neither be passed nor carried out.

The effect of the addition of these words, as my hon. Friend the Member for Nelson and Colne has said, is that a sentence of death could be passed by a foreign service tribunal which had first been able to use the apparatus of our own civilisation by calling British witnesses and so forth, if necessary. If then a sentence of death were passed, on the assumption that capital punishment had been abolished in this country I think the effect of these words would be that the execution would be carried out elsewhere; the man in question would have to be deported and executed outside the jurisdiction of this country. That is not a very desirable thing to propose.

The phraseology of this Clause strikes me as being rather ambiguous and unsatisfactory in this respect. It says … shall not be carried out in the United Kingdom unless under United Kingdom law a sentence of death could have been passed in a similar case. What is meant by "a similar case"? Does it mean a case in which the charge was an identical charge, or does it mean in circumstances which would almost certainly have produced the same result if United Kingdom law had applied? If these words are designed to have the latter meaning, I should have thought that any court or any military authority which attempted to carry out such a sentence without being quite sure that under United Kingdom law the sentence of death would have been passed in a similar case would be taking a very grave risk indeed. It would expose them to the very serious criticism that they had not established that in precise and identical circumstances a sentence of death would have been passed in the ordinary English case.

I imagine there is machinery available even in the short time before this Bill is sent for the Royal Assent for the Home Secretary to consider the points we are making on this Amendment. Speaking for myself, if he will say that he will be good enough to try to deal with the matter in that way, I think he will be meeting the points we have tried to raise.

Lieut.-Colonel Lipton

This Amendment makes the most microscopic concession that could have been made to the points we submitted in Committee. All it does is to lay down that a service court can pass a sentence of death on one of the people coming within its jurisdiction whether a sentence of death would have been passed in an English court or not.

The only restriction to which a visiting force would be subjected as a result of the Amendment is that a service court could proceed just as though this Amendment were not on the Order Paper at all and it could pass sentence of death for any crime whether punishable by it in this country or not, take the unfortunate man on a boat to the three-mile limit, and proceed to carry out the sentence of death it had already decided upon. Sentence of death in those circumstances would not be carried out in the United Kingdom. All that it would be necessary for the service court to do would be to make arrangements for one of its vessels to come to the three-mile limit. It could then take the man, hang or shoot him, or tip him overboard, as the case might be. For those reasons, I do not think that the Home Secretary has made any concession whatever by asking us to accept the Amendment.

Mr. S. Silverman

Is the right hon. and learned Gentleman not going to deal with any of these points?

Sir D. Maxwell Fyfe

I speak with the leave of the House. I am afraid I cannot make any approach to the views advanced, because in my view that would conflict with the agreement. This is the limit to which I can go; I am quite willing to consider it from the point of view of whether one can get better phrasing, but I did not think it was worth saying that to the House.

Mr. Silverman

Does the right hon. and learned Gentleman realise that if this remains as it is, people can be sentenced to death on charges which are by no means capital charges in this country? There are two people now in Sing-Sing Prison awaiting execution on charges which, whether they are moved or not, some people think the offences were not committed——

Mr. Speaker

The hon. Member ought to ask leave of the House before speaking again. He has already addressed the House on this topic.

Mr. Silverman

I beg the pardon of the House and I ask leave of the House. I thought I was making a short intervention. I was pointing out that there are two people in Sing Sing awaiting execution on a charge which has never been a capital charge in this country and which, I understand, has never before been a capital charge in peace-time in the United States.

Surely if the agreement does not provide for this case, we could negotiate an amendment? It is a preposterous thing if a foreign court should be allowed to inflict on our soil capital penalties which would be repugnant to the moral sense of the whole of our community. I think that the right hon. and learned Gentleman ought to think again about it.

Amendment agreed to.