HL Deb 04 February 1915 vol 18 cc443-67


Order of the Day for the Second Reading read.


My Lords, I should not under ordinary circumstances think it necessary, in moving the Second Reading of this Bill, to say more than a few formal words, because it is nothing more than the reinstatement., if I may use that term, of well-established principles which have long been embedded in the fabric of our Constitution, and which really form the foundation stone of what is called our personal freedom. But I am aware, from communications which have reached me, that the purport and object of my Bill are, at any rate in some quarters, not fully understood. Therefore I shall ask your Lordships' indulgence while at somewhat greater length than I had intended I explain the purport and the object of the Bill. The title of the Bill, which is "to restore to civilians their right to be tried in the ordinary criminal Courts," expresses in ordinary language, easy to be understood, what the real purport and object of this Bill are. Apart from any technical phrases I seek to do nothing more than, as I have already said, reaffirm principles which at any rate in this House have found acceptance for many centuries of time.

I think it would not be out of place in this House to refer to the great principles for which certain spiritual and temporal Peers found expression seven hundred years ago in the Great Charter—principles which have borne the wear and tear of time, and which we regard with, perhaps, greater veneration now than when they were passed. The particular clause in the Great Charter to which I want to direct attention is that which begins with the well-known words, Nullus liber homo. I hope I may be forgiven if I construe that clause in more homely words. It means this, that no free man shall be taken prisoner, or outlawed, or in any way injured except under the judgment of his peers and in accordance with the well-established rules of law in this country. That is a very great principle, and it is not necessary to insist on the importance of maintaining it. But if the Defence of the Realm Act is left unamended, at any rate for the first time under the sanction of Parliament expression will have been given to principles inconsistent with that contained in our Great Charter of seven hundred years ago. At the commencement of the great Revolution that principle stood in the forefront of the Petition of Rights, and when the Revolution ended in the exile of James II it occupied the foremost place in the Declaration of Rights. But it is sufficient for my purpose to give a much more modern illustration.

I do not know whether your Lordships take the trouble to read the Preamble of the Army Act which is annually passed. I will venture to read a few words from the Preamble of the Act which was passed last year, and which I presume will be passed in the same terms in 1915— And whereas no man can be forejudged of life or limb, or subjected in time of peace to any hind of punishment within this realm by martial law or in any other manner than by the judgment of his peers and according to the known and established laws of this realm … It is that principle which I seek to reinstate by the Bill which I am now proposing for Second Reading. But I want to make this further statement. There has been an obvious confusion in the minds of many persons between what is known as martial law and what is known as military law, and it is of the utmost importance, as regards the Bill which I am now proposing, that tins distinction should be clearly recognised and clearly maintained. The effect of the Defence of the Realm Act is not, in the true sense, to touch martial law at all; its effect is to extend to civilians the powers which, under existing military Acts, are only applicable to the armed forces of the Crown.

An initial mistake which is sometimes made as regards the Bill which I am now proposing to your Lordships is that it might in some way interfere with martial law under certain circumstances—God forbid that they should actually arise!—which might arise in this country even in the immediate future. Martial law as known to our Constitution means a cessation of all municipal law and a new law which arises from the necessity of the military position and only endures so long as that necessity continues in force. I should like to refer on this point to the noble and learned Earl (Lord Halsbury) who sits upon the Front Bench on this side of the House, because, bearing in mind the decision which he has given, I think he will agree with me that martial law does not arise in this country unless in some sense there are actual conditions of warfare and unless the ordinary Courts are not available for criminal procedure. If I thought that the Defence of the Realm Act in any way interfered with or curtailed the rights which cur military commanders would have under the condition of martial law, I should strongly oppose it on that ground, but I am bound to say that I do not think that is true. I think the whole of the Defence of the Realm Act is based, not on the imposition of martial law, but on the extension of military law to civilians, and it is against that extension that I am protesting in the Bill that I have brought before your Lordships.

It is most important that a matter of this kind should be rightly understood at the present time. I have heard it said, I think in your Lordships' House, that to alter in any way the Defence of the Realm Act might impair the power of our military authorities in case of invasion. My Lords, exactly the contrary is the case. If the Defence of the Realm Act has any effect at all—in my opinion it has no erect upon this point—but if it has any effect at all, it would curtail the large powers which, under conditions of necessity, are properly and always entrusted to the military commanders. A time comes when Salus populi suprema est lex. Those are the conditions under which martial law has force in this country, and I would not in any way be a party to a provision in any Act of Parliament which would curtail the power, which in the last necessity of a great national crisis it is absolutely necessary should be reposed—and we may confidently repose them—in the military authorities.

The only argument that I have heard against this Bill is one which was adumbrated by the noble Earl, Lord Crawford, who, as we know, has paid great attention to matters of this kind. I think it is his opinion—if I quote him wrongly I will apologise to him—that if the Defence of the Realm Act were altered in the sense that. I am desirous of altering it, there would be some curtailment in what he desires as regards drastic remedies in cases of alien espionage. I hope to convince him that the view that he holds upon that point is not really justified. I think at the outset there is much to be said for what I understand was stated last night in your Lordships' House, though I was not here—namely, that the difficulties in dealing with the spy question have arisen from divided powers and divided responsibility. It appears to me to be essential, if you are to have remedies on these matters properly applied under the most efficient conditions, that you should place the responsibility where it ought to be placed—namely, as regards military men upon the War Office, and as regards civilians upon the Home Office. I hope no one will think that I am considering for a moment how the War Office or the Home Office may be manned at any particular time. The principle is what I am pleading for. And unless you maintain this distinction I can see no way in which you can get an effective and efficient remedy under the very head which I know is dear to the mind of the noble Earl, Lord Crawford.

May I saw this further? I yield to no one in the opinions which I hold of the splendid self-sacrifice and devotion to duty of our Army at the present time. But is it not wrong principle to put upon our officers and our Army administrators functions and duties which, however important, are not the functions and citifies to which they have been trained and to which their training specially fits them? It appears to me that you are diverting the Army administration from duties of far greater importance. You are using the wrong weapon for the purpose; you are dividing authority. If you want efficient management you should have authority in one hand and in one Department, and that would be the result if the Bill the Second Reading of which I am now moving were passed into law.

There is one point on which I would say a further word. I refer to the expression "drastic remedy." We all desire that punishment should follow hot upon crime such as espionage, subject only to the person charged receiving a fair trial. But I think none of your Lordships would desire a drastic remedy in another sense. You would not desire a drastic remedy which might bring conviction to a possibly innocent man. You would not desire a drastic remedy which took away from the ordinary civilian the safeguards in procedure which the law provided for him. Therefore unless Lord Crawford intends to imply by drastic remedy an interference with the principle of fair trial, I beg to agree with him in what he has said; and I submit this suggestion to him, that in order to get a drastic remedy such as we should all desire, it is important to use the civilian forces of the Courts which at the present time are open in connection with crimes of this character. So far as my Bill is concerned, it is not in question as regards the character of the offence; the only question is as to the fair tribunal before which the person accused ought to be brought.

Let me emphasise what I have said of the terms of the Defence of the Realm Act. I doubt whether all of your Lordships can have studied—and I admit it is difficult—it has cost me some time—what the real effect of that Act is. The Act itself is very short; I do not think anything turns upon the actual words of the Act. But under the Act Regulations have to be made. There are in all sixty-three Regulations, and it is under those Regulations that the difficulties arise. It does not commend itself to my mind that Parliament should pass far-reaching criminal legislation under the form of Regulations. I think that all matters of that kind should be brought before and discussed by the two Houses of Parliament. But I freely admit that the occasion was exceptional, and that perhaps the exceptional occasion justified the way in which this legislation was carried through. But let us come for a moment or two to the substance of this legislation. Your Lordships need not fear that I am going into the sixty-three different Regulations which either constitute or define crimes under the Defence of the Realm Act; but if the Regulations are carefully considered, the criminal acts really range themselves under two heads. There are what I may call the more serious acts—that is to say, acts done with an intention to assist in some way or other our enemies at the present time. I think I shall have the concurrence of all your Lordships when I say that no punishment is too severe for a civilian who acts with the intention of assisting the enemies of his country. I think on that matter there will be no question or doubt on either side of the House. But it remains to consider what is the best way in which crimes of this kind should be dealt with in order that civilians and others may have a fair trial.

I should like upon this point, because I have the greatest respect for his legal authority, to call to the remembrance of your Lordships, not in actual words, what was said by the noble and learned Earl, Lord Halsbury, on a former occasion. He pointed out, I need not say with perfect accuracy—it would be an impertinence on my part to suggest anything else in a legal question—that these crimes which imply an intention to help the enemy all come within the realm of our Criminal Common Law or Statute Law at the present time. You find them either as treason, misprision of treason, or treason felony; and not only are they all part of our law at the present time, but they all of them involve the possibility—in some cases it is the only punishment—of the death sentence. I want, therefore, to back up in the strongest terms what was said by the noble and learned Earl, Lord Halsbury, that where you have crime of a character which may eventuate in a death sentence, you ought not to depart from the principles of our Common Law, but ought to resort to the tribunals and Courts which ensure a fair trial and which, by their procedure, enable every point to be properly considered and properly weighed.

What reason is there that crimes of this kind should be determined by what is known as a general Court-Martial? It is not for me—I repudiate the notion that I did so on a former occasion—to criticise in any way the attitude or action of Courts-Martial; but it would be ridiculous to say, in the case of crimes of this kind, that Courts-Martial can deal with them with the same experience and the same knowledge as our Judges in the ordinary criminal Courts of this country. I may say in passing that, although more senior officers are always obtained if necessary, yet I believe that a general Court-Martial is still a legal Court-Martial if presided over by a captain. There, again, I am not finding fault with any captain in any branch of His Majesty's Service; but is he the proper person to decide, or is a tribunal so constituted capable of deciding, a case of life and death?

I will give an illustration of what I mean. It may in some sense be quoted against me, but I think it tells much more strongly in the other direction. Not long ago a man who had been a German Consul in one of our East Coast towns was tried for high treason before a Judge and jury. No tribunal is infallible, and persons in this country tried before a Judge and jury have a right to appeal to the Court of Criminal Appeal. In this case the Court of Criminal Appeal, presided over by five Judges, among whom was the Lord Chief Justice (Lord Reading) whom I see in his place this afternoon, unanimously decided that the crime had not been proved against the defendant. What might have happened in the case of a general Court-Martial? I know that the noble and learned Viscount on the Woolsack has said that sentences of this kind are brought to his notice and to that of other legal authorities before they are carried out, but that is not the same as an appeal. You cannot have the real point threshed out in that way. I say that if this case had been tried before a general Court-Martial there is no guarantee whatever but that an innocent man might have suffered the extreme penalty of death. In this country we boast of justice and fair justice, and I think rightly. We boast what is called the rule of law—that is, that no man is to be condemned except under established principles and by an established tribunal; and I ask your Lordships at a time of this kind, at a time when there is excitement and bias—they exist in all nations under these conditions—to make sure, by accepting the principle of this Bill, that in a case of this kind every reasonable chance is given to a prisoner to prove his innocence. The more serious the nature of the crime, the more right it is that the prisoner should have the opportunity which our ordinary law gives him.

There is one other set of provisions in the Defence of the Realm Act to which I must refer. The whole Act is framed on this principle, that it is for the military commanding officer to say whether a particular individual should be tried before a military or a civil Court. The effect of my Bill, if passed, would be to make only the civil Court available on occasions of this kind. But a large number of the offences, offences which do not imply intention to assist the enemy, would be tried either before a district Court-Martial or under what is known as ordinary summary jurisdiction. I want you to appreciate what I say upon this point. A district Court-Martial may be presided over by any officer who has been two years in His Majesty's Service. During that time his attention would have been occupied, I should hope, rather with truly military matters than with questions of difficult evidence. What is the position? At the present moment Courts are open everywhere and every day to deal with questions of this kind, and although the noble and learned Viscount on the Woolsack will correct me if I am wrong in this respect, I apprehend, from reading the papers, that at any rate ninety-nine cases out of a hundred of this character are, in fact, sent to the ordinary civil tribunal. There may be some cases—and if it is right to form any exception I for my part would support the Government in every possible way—in which they might fairly claim that special facilities should be given as regards particular crimes. But what is the necessity?

Let us take the conditions in London. I take that case merely as an illustration of what occurs in all parts of the country. We have in London stipendiary magistratee of known experience. A question arises, not of intention to help the enemy, which is a different matter, but a question arises under these numerous provisions in which a man is charged with some offence of which, perhaps, he may not know the character, but of which he is no doubt rightly found guilty if he has not complied with the conditions of the Act. Whom would you ask to deal with a question of that kind? Would you interfere with your Army organisation in order to get a district Court-Martial, or would you send the case, as I believe they are being sent at the present time, to the ordinary tribunals who have knowledge and experience to deal with matters of this kind? I should not be here proposing the Second Reading of this Bill if I thought that in any way or in any form its passage could interfere with the powers which the Government think are necessary at the present crisis and under present conditions. I do not believe that any of these powers can be said to be so necessary. But if the noble and learned Viscount on the Woolsack were to get up and say that in his opinion some of these powers were essential under existing conditions, I should recognise the heavy responsibility under which he rests, and whatever my own opinion may be I should have to give way. But at the present time I know of no such instances, and I do not think I am going too far when I say that I am not convinced that there are any such instances under present conditions.

Having, I hope, given a sufficient explanation of the way in which I look at this amending Bill, let me say one or two words only in conclusion. What I want is the establishment of a principle. I do not want to haggle about the ways and means in which that principle is established. I should like the principle to be accepted, as I believe it is one that ought to be so accepted, unanimously in this House, which has so often stood in the forefront in the establishment and maintenance of great Constitutional principles. But I go to this extent, that if I could be satisfied that, accepting the principle, it will be put into a practicable form by the Government, who are primarily responsible for matters of this kind, that at any rate to me personally would be a satisfactory conclusion of our debate to-night. I do not know, of course, what the noble and learned Viscount on the Woolsack will say on a matter of this kind. If he were to say, "I think the principle is wrong," then, if I only found a few members of this House to divide with me, I should divide in favour of the Second Reading; but if, accepting the principle, the noble and learned Viscount were to say that it must be worked out in accordance with the responsibilities of the Government and subject possibly to limitations of which the Government know the necessity and which are not present to my mind, then I should hope that we might postpone the further discussion of this Bill on the ground that it would not be necessary to renew it if the Government themselves took up this important matter in order to bring it to a fair conclusion. At any rate I must take my stand on this—that above all countries we are praised for our sense of right and our system of justice, and I must withstand any attempt to tamper with what appear to me to be the great root principles on which our justice has been established over centuries of time. I would do so the more at a period of exceptional excitement, because I think it is exactly at that time that you must keep untouched your principles of justice, and you must maintain every safeguard to protect a prisoner who, though accused of some horrible crime against our nationality, is yet entitled not to be convicted if he can prove his innocence. I move the Second Reading of my Bill.

Moved, That the Bill be now read 2a.—(Lord Parmoor.)


My Lords, the noble and learned Lord has made a speech of eloquence permeated with the spirit of the Constitution, and he has said much with which I am in agreement. He concluded his speech by a question to myself which was in substance this—Will the Government accept the broad principle embodied in this Bill subject to such modifications and adaptations as they think the circumstances of the case require? If an affirmative answer were given, I gather from the noble and learned Lord that he would be prepared to move the adjournment of the debate at the proper moment in order to see what propositions the Government were about to make. The Government do propose to make propositions which will be embodied in a Bill to be introduced either in this House or in the other House of Parliament.

I will tell your Lordships shortly how the matter stands between myself, speaking on behalf of the Government, and the noble and learned Lord. It is true, as he has said, that the principle of trial before a jury is a principle which is very deep in our Constitution and one which we are all bound to respect. It is true, as he has further said, that there is no such thing as military law known to the Common Law of this country. In this respect we differ from foreign nations. Your Lordships may recently have read references in speeches made abroad and in articles published in foreign newspapers in which those countries are spoken of or written about as being in a "state of siege." That does not mean that the country is invested. It means that, by a provision which is common in Continental Constitutions but unknown to us, war having broken out there has been introduced a condition of things intermediate between the normal condition and martial law, assuming the shape of a new Code under which very large discretion is given to the administrative authorities to interfere with the liberty of the subject. We have no "state of siege" in our law. When what is somewhat inaccurately called martial law is brought upon the scene, what it means is that force has to be used to repel force; and as part of the using of that force in self-defence the liberties of individual persons have to be interfered with. It is not law; it is the overriding of law in the interests of public safety; and always at the end of the period in which such things have been done an Act of Indemnity has to be asked for from the Legislature. I say that to make dear why it was that the Defence of the Realm Act came about.

When this country became involved in the war which is now being prosecuted the Government felt that the country was fighting for its very life. With a war of this seriousness waged so close to our doors, fraught with the perils to us of invasion, and carried on by an enemy who was deterred by no scruple from resorting to every means by which he could attain his ends, it was felt necessary that exceptional measures should be taken. Therefore there were introduced, under the Defence of the Realm Act, nothing amounting to the "state of siege" in Continental countries, but exceptional laws which precluded the doing of a good many things which at ordinary times might have been done without violating any provision in our Statutes. Under the Defence of the Realm Act, long before the discussion which took place on November 27 last in this House, a British subject could be tried not before a jury, but before a Court-Martial. That was the outcome of the exceptional steps which we felt had to be taken in the interests of the national safety. Then came the Bill—the Defence of the Realm Consolidation Bill—on which this question originally arose, and which proposed to enable the death penalty to be inflicted as a punishment for the infraction of the Regulations. I expressed at the time to your Lordships, and I express now, the great value of legislation of this kind—undertaken at a time of great national emergency, at a time when we have to consolidate our strength in every way and to protect ourselves against the most insidious of foes—being preserved, and I agree with the noble Earl, Lord Crawford, as to the value of the deterrent effect of possessing machinery which could be promptly put into operation against unscrupulous persons, it might be enemy aliens, who were conspiring against the public safety in our midst.

The problem which has to be solved is how to save two principles—the great principle of which the noble and learned Lord has spoken, and the principle of doing what is necessary to preserve the public safety. I say at once that I am with him in thinking that in the present condition of things the law as it has been enacted goes further than is really necessary. It is valuable to have these deterrent provisions and to have the machinery which we possess at the present time, and I should be very sorry to suggest that the Government could properly be a party to in any way weakening our hands in our own self-protection. But when it comes to the question of the machinery of punishment other considerations come in. I think it is right that everybody who is subject to military law should be subject to punishment for the infraction of the Regulations under the Defence of the Realm Act and should be tried by a military tribunal for that purpose. I see no reason why we should make any exception in favour of persons who do not enjoy the Constitutional rights of which the noble and learned Lord spoke by reason of not being British subjects. Where the subject of a friendly Power committed an infraction of one of these Regulations and had to be tried, then the Defence of the Realm Act and the Regulations made under it would preserve the power under which we could and probably would send such a person to be tried before one of the ordinary tribunals of the country. But there is another class of alien—an alien enemy—who does not come under that footing, and I see no reason why an exception should be made in his favour, and I think the Bill of the noble and learned Lord goes rather far in that direction.

My first amendment of the machinery by which the noble and learned Lord proposes to carry out the principle which I accept, is that the provision in the Bill should not extend to any one who is not a British subject. As I have said, we can safeguard the interests of aliens, where those interests should be safeguarded, by other means; and the suggestion of my noble and learned friend Lord Loreburn was directed to the case of British subjects in the Amendment which be proposed at the time. Clearing that out of the way I come to the next point on which I feel that the machinery proposed by the noble and learned Lord will want consideration. At present if a man commits an offence against the Defence of the Realm Act there are certain cases in which he can only be tried before a Court of summary jurisdiction. Well, that is a civil Court, and it can only inflict punishment up to the extent of six months imprisonment I see no reason why any alteration should be made in that respect. It is the same procedure under both proposals. Then there is another class of offences which are serious, but they are offences some of which have not yet been sufficiently defined by our laws, and I think in any amending Bill for this purpose you will have to make it clear that these offences are offences which can be tried before a civil tribunal inasmuch as they are made offences known to the law. I do not say that many of them cannot be brought, by the subtlety of learned persons, within principles which are known, but we wish our law to be plain and intelligible, and I think in some respects some amendment will have to be made in that regard.

It seems to me that the necessities of the case as well as the objects of persons like the noble Earl, Lord Crawford, will be met if anybody, being a British subject and not subject to military law, who is about to be tried for an offence which cannot come before a Court of summary jurisdiction, had open to him the option of electing to be tried before a civil Court with a jury, and we should arrange that the trial took place speedily. Speaking for myself, I should be glad that this option should exist, because I think that in many cases the punishment inflicted by the civil Court would be likely to be more severe than that under a Court-Martial. But this would secure to any person on trial for his life the option to be tried before a jury and a civil tribunal.

One other point I think requires safeguarding. As I have said to your Lordships before, there may arise a state of things in which all law has to be suspended, such as when actual invasion takes place. Therefore I think there ought to be a provision—this, again, goes beyond the proposals of my noble and learned friend Lord Parmoor—to the effect that the Executive should, in the case of such emergency, have power to suspend the operation of the law which provides for civil trial in order that the cases may be taken by Courts-Martial. That is really not going further than would be done in a case of emergency at the present time. I trust that we shall never have to consider such a step in this country; and it is not a case that would arise unless there was some serious invasion or other great national emergency. If the noble and learned Lord will be content with what I have said—from which he will have seen that I accept his principle and propose to modify his machinery in certain materials —then I will undertake that within the next few days, either here or in the other House, a Bill shall be introduced which shall carry out the principle, subject to some such modifications as I have in very general terms endeavoured to indicate to the House. And as your Lordships will probably not feel yourselves in a position to discuss so complicated a matter until that Bill comes before you, I think it is not only reasonable from the point of view of the noble and learned Lord but for the convenience of the House that the debate at the proper time should be adjourned so that the discussion may be resumed when the Government's Bill in its details is before us.


My Lords, I think your Lordships will agree that the speech to which we have just listened leaves no room for doubt in our minds as to the proper course to be taken with regard to the Bill of my noble and learned friend. I am constrained to tell him that I should have found it impossible in any circumstances, if he had asked the House to divide upon it, to give him my support. Let me remind your Lordships, very briefly, of the history of the Defence of the Realm Consolidation Act as it now stands. That Bill was introduced in the month of November last year, and we were led to believe that its provisions represented the deliberate conclusions of His Majesty's Government and that it embodied precautions which they considered indispensable in view of the serious condition of things with which we were confronted. The Bill received very little discussion in the House of Commons. It is interesting to note that the only criticism which it received in that House came from Unionist Members, and that so far as the Liberal Benches were concerned not one word of protest was heard to the effect that the measure erred on the side of over-severity.

The Bill came to your Lordships' House soon after, and was fully explained to us by the noble and learned Viscount. He told us that its provisions were founded upon the experience of the war which had already been gained—the war had been then three months in progress—and he added that the measure was necessary in order to reach certain evils which could not be adequately reached under the existing system. The noble and learned Viscount then proceeded to explain that there were four objects which the Bill mainly desired to effect. I will only refer to two of them because there are only two which are germane to the discussion this evening. In the first place we were told that under that amending Bill all offences, whether committed inside or outside a proclaimed area, would be triable by Court-Martial. The other main provision upon which stress was laid was the provision which permitted the death penalty to be inflicted in all cases where there was proof of an intention to assist the enemy. Under the law as it stood up to that time we understood that Courts-Martial could impose the death sentence only for war crimes, war crimes being crimes which could not be committed except by an enemy subject. I think that is how the matter was put to us; and the noble and learned Viscount dwelt very earnestly upon the value of the deterrent effect of a measure such as that which he proposed to the House. He described in vivid language the imaginary case of a British subject who, dreadful as it is to contemplate such a thing, might be caught in the act of taking steps for betraying the interest of his own country, and he dwelt on the need of prompt and effectual retribution for such a crime.

It must be admitted that a note of uneasiness was expressed in this House. It was expressed by the noble and learned Earl, whom I see in his place (Lord Loreburn), and by more than one other Peer. But the complaint which was made, so far as I am able to understand the record of the debate, was directed at that moment to one point and to one point only—namely, to that part of the Bill under which it would be possible for a Court-Martial to inflict the death penalty in certain cases. The result of the discussion was that the noble and learned Viscount had to make some kind of terms with his critics. There was an understanding to the effect that the whole matter would come up for reconsideration when Parliament met again, and that in the meantime the death penalty was not to be inflicted in any of the cases under discussion. Then came the Regulations, to which my noble and learned friend referred. They were issued on the following day. They are very numerous and create a considerable number of new offences. Some of those are triable by a Court of summary jurisdiction, others are not; but I think I am right in saying that there are really only two offences out of the long list which are triable only by an ordinary Court—one has reference to the exhibition of lights on vehicles, the other to the possession of an undue quantity of celluloid or kinematograph films. All the rest of the offences, except those two categories, can be sent for trial by a Court-Martial if the military authorities so desire. That is how the law stands at this moment, and that is how we are bound to suppose the noble and learned Viscount and his colleagues thought it necessary that the law should stand in order to render us safe during the times which lay before us. It is in these circumstances that my noble and learned friend below the Gangway asks us to give a Second Reading to his Bill. I do not think I am going too far when I say that in so far as the provisions which I endeavoured to describe a moment ago are concerned my noble and learned friend's Bill really eviscerates the noble and learned Viscount's Act.


It would not eviscerate the Act at all; it would leave every crime exactly where it is. It would only determine the method of trial.


I think it eviscerates it in this sense, that the noble and learned Viscount laid the value in his speech on trial by Court-Martial as a deterrent; therefore if trial by Court-Martial disappears and if every accused person has a right of claiming to be tried by a civil Court, a very essential part of the deterrent provisions to which the noble and learned Viscount attached importance seems to disappear. But that is not all, unless I misunderstand the Bill of my noble and learned friend. Should it become law no offences, not only offences punishable by the death penalty but no offences committed by civilians, would be triable by a Court-Martial if the accused person objected. That is obviously a very serious alteration in the present condition of the law. Again, unless I misunderstand the effect of the clause, accused people who are aliens would get the advantage of this relaxation of the precautionary measure. Perhaps the word "evisceration" may be too strong. But let me suggest that this Bill does involve the alteration of the existing Act in essential and material particulars; and for that reason, if for no other, I think your Lordships would have considered it necessary to scrutinise very narrowly the proposal of my noble and learned friend before assenting to it.

I am certainly not going to attempt to dogmatise in regard to the technical portions of the Act or of this Bill, but I do desire to say this. Here is a question admittedly of the very first importance of which the Government of the day are seized. They have dealt with it by legislation, and we now learn that they themselves intend to bring in a measure to amend their own legislation. It seems to me that in those circumstances it would be quite impossible for us to commit ourselves in any sense to the Bill brought in by my noble and learned friend without a knowledge of facts which we do not possess. We should like to know, for example, whether the experience of the war which the Government have had since they put the Act upon the Statute Book has led them in any sense to believe that measures of precaution which were necessary in November are not necessary now. I cannot conceive that that question could be answered except in the negative.

And let me say this as a general observation. It is quite clear that emergency legislation of this kind must involve some measure of interference with privileges to which we attach the greatest importance—privileges which we venerate and cherish very dearly. That could not have been put more eloquently than it was put by my noble and learned friend. But I feel that in times like these we must be prepared, if necessary, to part with some of those privileges if the public interest requires it. I would almost go as far as to say this, that we must be prepared even to risk an occasional miscarriage of justice rather than allow our law or our regulations to remain in an inefficient condition. The matter could not have been put more clearly than it was put by the noble and learned Viscount when he used these words— We are living in a state of war and fighting or our lives as a nation, and we have to take exceptional powers. His Majesty's Government have taken such powers, and we are ready to support them in retaining them. Personally I should be very reluctant to curtail those powers, but if the noble and learned Viscount is able to tell us that on some points the Act of last November requires to be revised we are ready to consider his proposals and to deal with them with a perfectly open mind.

I followed the noble and learned Viscount's proposals as carefully as I could, and I noticed one announcement which fell from him which seemed to me to be of a reassuring character. I think I understood him to say that although in his opinion the law now goes too far at certain points, and although he intends to amend it at those points, His Majesty's Government nevertheless have it in their minds to declare that at a moment of real emergency even these new provisions shall be made to stand on one side and trial by Court-Martial become the rule instead of the exception. If that is intended, I am bound to say that that would go far to removing my misgivings. In the circumstances I sincerely trust that my noble and learned friend will be content with the discussion which has taken place and which will no doubt be prolonged this evening, and that he will not ask the House to divide upon his Bill.


My Lords, I am sure that the disposition in every part of the House will be not to say or do anything that can embarrass the Government in the heavy duty they have to discharge or that will in the smallest degree diminish such certainty as we can attain of offences against our nationality being promptly and adequately punished. No one doubts or has ever questioned the necessity of making those provisions. The only point is in what method can they be best made in order to meet the situation in which we are placed. It has been obvious to me that a little has to be said in order to explain what is the true situation and what is the point which I gather my noble and learned friend opposite made. No one proposes or has proposed to do anything that shall deal with the discipline over the troops or ally persons who are in military employment That has not been suggested; and there is not a word in the Bill that in any way affects it. No one proposes to interfere with the law as it now stands in cases of necessity when the Courts are suspended and when ordinary justice cannot be administered as usual. The noble Earl, Lord Halsbury, laid down in the Privy Council the law upon this subject some ten or twelve years ago. When there is a real state of necessity and when self-defence calls upon the officer in command to put forth exceptional powers in order to deal either with property or rights or liberty or life, whether of civilians or of soldiers, he takes it upon himself, as the Duke of Wellington said, because martial law is really a denial of law; he takes that position and he exercises it when necessity arises. And this Bill of my noble and learned friend does not in the smallest degree and could not interfere with the exercise of that right in the conditions which make it admissible. That is not the point at all.

Nor does the Bill of my noble friend or any proposal that I have made seek to limit the nature or the category of offences which may be punishable. It is quite certain that some of the things that are provided for by the Defence of the Realm Act or by the Regulations which have been published by virtue of it constitute new offences. Illustrations were given, I think, by the noble Marquess. Quite true; quite right. Exception has not been taken to that. If those offences are not sufficient in number fresh Regulations can be issued under the authority of the existing Act which will make adequate provision against that. The consequence is that there is really nothing left to which my noble friend takes exception or to which I took exception except this—that when civilians in this country, being British subjects, are charged with an offence, whether under the Defence of the Realm Act or under the law at large, which can be tried by competent Courts, skilled and experienced and surely trustworthy and constitutional, without any resulting inconvenience either to soldiers or to sailors or to anybody else, the person accused ought to have the right to trial, if he desires it, by the ordinary Courts of the Realm. That is the real proposition, and I am sure that my noble and learned friend on the Woolsack will not in the least dispute that that is what is proposed and all that is proposed by us.

The truth is, if I may say so, there was an oversight when the original Defence of the Realm Bill was brought in in August at a time of great difficulty and excitement—an oversight on the part of the Government which may well be excused, and which no one would criticise in these trying times. It failed to provide that when the civil Courts were sitting discharging justice in the ordinary way and trying to do what is right according to their experience and judgment, they and they alone should try civilians. It is a new thing in this country that any civilian should be liable to be brought before a Court-Martial. That is the sole controversy, if there be a controversy, between us, and my reason for being anxious to elucidate it is this. I do not want noble Lords opposite, whose object I believe to be identical with our own, to be left under the impression that any members of this House or any members of the public in the least degree desire to weaken the Executive Government in the conduct of the important business they have to discharge. No one wishes anything of the kind. But what we do wish is that unless and only unless necessity requires a change the ordinary Courts should continue in the discharge of their functions. That is what we desire—that in serious cases civilians should be tried by juries, and that in small cases they should be tried by justices; and it is the more important that this should be so because of the nature of the new offences that have been created under the Defence of the Realm Act. I will not dwell upon them, nor will I even read any of them. But these Regulations are couched in perfectly general terms, and general terms are always more or less vague. The offences are also novel offences, so that those who have to try them are not reinforced by the experience of the past in applying their judgment. For that class of offences in particular it is desirable that the experienced ordinary tribunals should, unless necessity for a change arises, try those who are accused.

There is only one other thing I wish to say. Under the Defence of the Realm Act it is left to the discretion of the Executive Government to decide by what Court a civilian is to be tried. I think that is very unnecessary, and very undesirable. It seems to me that it is an intrusion into judicial business by the Executive in a manner which has not been precedented in the whole history of this country. Again, if necessity arises I am quite prepared that even that should be conceded, but when there is no necessity I cannot understand that any one should adhere to a measure of that kind. I have offered these observations in the most friendly spirit to those who are responsible. I hope that they will take them into consideration before they introduce their Bill. But inasmuch as the Government have told us that they are about to introduce a Bill for this purpose I think my noble and learned friend would be well advised if he were to do what he announced his intention to do—namely, consent to the debate being adjourned until we see the proposals that are to be laid by His Majesty's Government on this subject.


My Lords, the speech of the noble and learned Earl goes very much further than the plea he put before your Lordships in the month of November last. His case then was that no civilian should be tried, or rather should be convicted, on a trial for his life by any but a civilian Court if such civilian Court were available. That was his only point—


Will the noble Earl excuse me? What I did was to move an Amendment. I have a copy of it here, and it runs— Any British subject who has not accepted military or naval employment shall have the right, if he demands it, to be tried by the ordinary Courts of Law for any offence punishable under or by virtue of this Act if such Courts are available, and all such Courts shall have jurisdiction to try ally such offences in accordance with Regulations to be made from time to time by Order in Council. That was the Amendment I moved. The noble Earl is mistaken if he thinks it is limited to the life sentence.


Evidently I was mistaken, but the words "deprived of his life" occurred so frequently. I was not conscious, indeed, that the noble and learned Earl actually had moved an Amendment, so I did him an injustice. Now, however, he goes very much further even than that, and supports the Bill of Lord Parmoor—




He seemed to support it throughout his speech.


Only the Second Reading.


I confess to being assured from what has fallen from the noble and learned Viscount on the Woolsack, but I do want to make a protest against the assumption which has underlain the speech of the noble and learned Earl and the speech of my noble and learned friend Lord Parmoor—namely, that as this Act stands there are likely to be any number of Courts-Martial either on large or small subjects. The Defence of the Realm Act does not impose the duty of these offences being tried by Courts-Martial, and the whole influence of soldiers and sailors is against trying numberless cases by Courts-Martial. They do not want Courts-Martial. It wastes their time. The whole of their energies should be devoted to the training of the troops, and the last thing they desire is to grab legal work, to take it out of the Law Courts and arrogate to themselves powers of the legal authorities which they are improperly qualified to fulfil. None the less I think it is necessary that the right should still be vested in those who can carry out a Court-Martial. Lord Loreburn says there is no necessity for it, but there may be tomorrow, and that is the whole point. He said, Let us wait until we are invaded—that is what the Government say—and then we will, by Order in Council presumably, restore to the military authorities the powers which are being taken away from them by this Bill. These are matters which should be settled in advance and not put off until the moment of supreme crisis.

I gather that my noble and learned friend Lord Parmoor does not intend to press his Bill to-day. But I must point this out. Under the Bill which we are now discussing a German caught actually trying to blow up, say, the Forth Bridge could not be taken up by the soldiers and tried and convicted there and then by Court-Martial. I say that Lord Parmoor is paying more attention to the rights of the individual than the circumstances would justify. The, point really is determined less by the nature of the offence than by the power of dealing with it. The Lord Chancellor made that quite clear the other day. The category of offences remains under this amending Bill and will remain under the Government's amending Bill as it is under the Defence of the Realm Act. I do not wish to change, to increase or lessen, the category of the offences. What I want is to get hold of the criminal and punish him there and then. I believe that the deterrent effects of Courts-Martial—and the Lord Chancellor insisted on this point a few months ago—are of infinite value. Now, what is going to happen? The man has a right to go to a civil Court, before a magistrate or a jury. From that he has a right of appeal. Of course, he would prefer anything which gave him that delay. We all know what the delays of the law can be. Months or even a year might elapse before the final decision was come to, and the person might even hope for an amnesty at the end of the war. I trust that the Government are not going to weaken too much on this point.

There is a great deal of talk about Magna Charta. Lord Parmoor gave us a very eloquent passage on it. I have a great respect for Magna Charta, but I feel that the rights of the individual have to give way when it is a case of maintaining the existence of our race. I do not mind what political rights are sacrificed if it is shown that their sacrifice is necessary in order to strengthen the country against this peril. I am sure that a lot of the agitation against the Defence of the Realm Act is due to the fact that the Press thinks it is going to be maltreated under it, that the newspaper editor is going to be tried by Court-Martial. There has been no case of that in this country as yet, and there is obviously no desire on the part of the Government to deal harshly so far as litigation is concerned with the Press, for we know that for months past sedition of the most violent character has appeared in some newspapers without any action being taken by the Government. So that I do not think the respectable and responsible Press in this country suffers the smallest risk of being unduly interfered with.

I do not want to anticipate the debate which will arise in a week or two on the Government Bill, but there is one word which I should like to say in conclusion. Lord Loreburn said that he did not want to embarrass the Government. No more do I. My desire is to prevent the Government weakening, and that is what I am afraid of. The Government have a weapon in their hands. I do not like to forego the power to use army weapon at our hand at this supreme crisis, and my word of warning to the Government is that they are proposing to do away with a right, a power, a weapon which is now in their possession. There is a tendency—we all see it—for the Government on certain aspects of certain questions rather to recede from the strong line they at first took. It was most marked in the matter of aliens, and now we see it in the matter of military trials. There are other branches where the same tendency to weakening exists. The position was dangerous six months ago, but I consider it still more dangerous and critical to-day. At such a juncture the Government should not despise the use of any authorised and legitimate weapon which they possess; they should not forego the use of any powers now bestowed on them by which they may reduce the length of this war, and the loss of which might impair the strength of the country.


My Lords, I do not rise for the purpose of prolonging this debate, but merely to ask a question in order to clear up my own mind as to what the meaning of this Bill is and what is meant by those who support the Bill. The noble and learned Earl (Lord Loreburn) told us just now that the Amendment which he moved to the Defence of the Realm Consolidation Bill only extended to British subjects. No doubt per incuriam, but to-night he also mentioned civilians. That was no doubt an accident, and he meant to Say British citizens. But this Bill goes very much further. It says that no person not at the time of the alleged offence subject to military law shall be liable to be tried for such offence under the Defence of the Realm Act. Let me point out that that would go far beyond "any British subject." Under that, Lody, for instance, would have been able to object to a military tribunal. Therefore this Bill is not identical at all with what the noble and learned Earl proposed on a former occasion. What I should like to know is, How do noble Lords who support this Bill in its present form make out that their action on this occasion is identical, or anything like identical, with that on a former occasion?


My Lords, in rising to propose that the Debate be now adjourned I should like to say one or two words in reference to what has passed. I think the noble Marquess the Leader of the Opposition did not appreciate what was intended by the Bill, particularly in one respect. I intended to make it quite clear that the Bill did not affect in any sense the martial law which we all recognise would come into operation under conditions of necessity. If the military law under the Defence of the Realm Act has any operation at all, which I do not think it has, it would be in the direction of limiting the necessarily wide powers which come into operation in the hands of our military officers under martial law. One other point was touched upon by the noble Earl behind me (Lord Camperdown). It is true that the Bill is drawn in what I may call the wide form, and I think properly so drawn, but if the Bill had gone forward at this stage it is clear that a modification and restriction in the direction which he and some other noble Lords have indicated is a mere question of drafting, and would have been a matter we should have had to discuss. I am grateful to the noble and learned Viscount on the Woolsack for what he has said, and I move that the Debate be now adjourned.

Moved, That the debate be adjourned.—(Lord Parmoor.)

On Question, Motion agreed to, and the further debate adjourned sine die.