§ Order of the Day for the Second Reading read.
THE LORD CHANCELLOR
My Lords, in rising to move the Second Reading of this Bill I may recall to your Lordships in a few words the history of the matters to which it relates. Immediately after the war commenced Regulations were made under the Defence of the Realm Act, a number of which created new crimes. Those Regulations were necessary, and the offences to which they related were offences which, in view of the fact that the country was in a state of war, were serious offences. Under that condition of things the Regulations themselves provided for the trial of persons charged with these offences. They were made without prejudice to any other jurisdiction which the law recognised, such as the jurisdiction to try an alien enemy by Court-Martial for a war crime. But in themselves they enacted that whilst the offences generally should be tried by Court-Martial the penalty of death should not be imposed by Court-Martial, and they also enacted that in the case of certain minor offences the prisoner should be tried before a Court of Summary Jurisdiction.
In that state of things a second Defence of the Realm Bill was introduced last winter in this House and passed by your Lordships. That Bill related to other important matters besides these. It would have been very unfortunate, for the other reasons to which I referred, if it had not been passed, because it conferred valuable powers which had nothing whatever to do with war offences. But on one clause of that Bill a sharp controversy was raised. That was the clause which enabled the tribunal to inflict the death sentence. It was extremely desirable that that Bill should pass, and I gave an undertaking, which was given subsequently in an equally emphatic form by my noble friend who leads the House, that no British subject not under military law should be sentenced to the capital sentence by Court-Martial before the House had had time to consider the matter again.
The matter was next brought up on the Bill introduced by Lord Parmoor. Lord Parmoor's Bill proposed to enact that notwithstanding anything contained in the Defence of the Realm Consolidation Act, 1914, or any Act incorporating, amending, 677 or repealing that Act, or any Regulations made thereunder, no person not at the time of the alleged offence subject to military law within the meaning of the Army Act, 1881, who has committed or is alleged to have committed any offence which is punishable by the law of England, and is within the jurisdiction of the criminal Courts, shall be liable to be tried for such offence under the Defence of the Realm Consolidation Act, 1914, or any Act incorporating, amending, or repealing that Act, or any Regulations made thereunder. Your Lordships will notice that the proposal extended to others besides British subjects. On the other hand, it was limited to the case of offences which were punishable by the law of England. After giving your Lordships an undertaking that if the debate on that Bill was not proceeded with the Government themselves would introduce legislation, the further debate on Lord Parmoor's Bill was adjourned sine die. The undertaking which I then gave has been carried out.
The object of the Government's Bill has been to avoid compromising any principle and to endeavour to find a solution of the matter which might be fair to the views that were put forward by both of the contending parties. On the one hand it is very important, in a state of serious war like this, when the nation is struggling for its very existence, that the rights of the State should conic before the rights of the individual; and it is requisite that more stringent powers should be taken than the majority of people in these islands would desire to see in force in time of peace. They are necessary for the public safety and for the deterrent effect which they have. I said that at the time, and I say it again. It is a view which, after consideration, impressed itself on my mind. On the other hand, you ought to be equally careful not to add anything which goes beyond the necessities of the case. I think there was great force in what was said by Lord Halsbury, Lord Parmoor, Lord Loreburn, and other speakers in the course of these discussions, that the civil tribunals of the land with a jury, properly used, at any rate in the case of British subjects and under ordinary circumstances, provided you with the whole of the remedies which you required. I am far from suggesting that it would be convenient or useful to apply that procedure in every case, but there are cases in which it is likely to be quite as effective 678 and at least as appropriate as the provision which at present exists under the Defence of the Realm Act.
The principle which we have endeavoured to carry out in the amendment of the two Defence of the Realm Acts is this. First of all, we go beyond the Bill of Lord Parmoor because we begin by enacting that any offence against any Regulations made under the Acts which is triable by Court-Martial may, instead of being tried by Court-Martial, be tried by a civil Court with a jury, and when so tried the offence is made a felony and there is the same punishment as if tried by Court-Martial. Instead of the offences under the Defence of the Realm Act being purely military offences triable by a military Court, they are made also civil offences punishable by the civil Courts as well. That is the first step forward, and I think it is a step which it is right to take in reconsidering the structure of these Acts. The second point is this. We confined—here going short of Lord Parmoor's proposal—the right to the constitutional tribunal to British subjects. We certainly do not think that an enemy alien ought to have it, and in the case of other aliens it is almost impossible to tell in this class of case whether you are dealing with an enemy alien or not. It is not until matters have progressed that you can be sure whom it is you are dealing with, and it may well be that a person may turn out to be an enemy alien after all when the circumstances are gone into. Then it is provided that notice is to be given of the charge, but, of course, this is not to apply when the offence is being tried before a Court of Summary Jurisdiction. There the accused stands just as he did before. In the case of an extreme set of circumstances—for instance, in the event of invasion or other emergency—power is given to suspend the operation of this Act and to allow what is practically the Military Code under the Defence of the Realm Regulations to prevail. That is a power which we thought it right to take, though we have every reason to hope that we shall not have to resort to it.
Various other provisions have been put into the Bill. The Vexatious Indictment Act is applied to these offences, and that simplifies the procedure. Subsection (4) of Clause 1 provides that for the purpose of the trial of a person for a felony under this section the offence shall be deemed to have been committed either at the place in 679 which the same actually was committed or in any place in the United Kingdom in which the offender may be found or to which he may be brought for the purpose of speedy trial. The effect of that is that it will be possible to try the offender civilly just as quickly as it would be possible to try him for any serious military offence. With that provision I think I can say to your Lordships that there is not likely to be any more delay in the case of a civil trial than there would be in the case of a military trial.
I will sum up what has been done. First of all, under these Regulations anybody may be tried before a Judge and jury, but the right to be so tried is limited to British subjects. It may be convenient to try even an alien before a jury, but he has no right to such a trial, the right being limited to British subjects. In the second place, the Bill sends for trial for any breach of the Regulations which in itself would have amounted to a crime. Then there is power to suspend the operation of the Act in case of invasion or other national emergency. The Bill as it stands represents what, in the view of the Government, is the proper balance between the two sets of views which were put forward. On the one hand, it gives the military authorities the fullest powers in the case of aliens; on the other hand, in the case of British subjects, while it leaves minor offences as they are at present—that is to say, subject to summary jurisdiction—in other cases it gives the British subject the right to claim trial before a Judge and jury, and makes amendments in the law which will render that mode of trial as speedy as the other would be likely to be. But I believe there will be a good many cases in which persons will prefer to be tried before a military tribunal. My own experience is that the military tribunal will not err on the side of severity. On the other hand, if it is a very serious case and the offender is in peril of his life, he may desire to go before a Judge and jury. In that event he will be able to go there speedily. I have now explained the Bill as it has been framed after a great deal of consideration and consultation, and I commend it to your Lordships as the best attempt we have been able to make to mark out the sphere in which the views of both parties to this controversy should receive due recognition.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)680
§ LORD PARMOOR
My Lords, I should like to recognise that this Bill goes a very long way to meet the objection which I raised on the former occasion in your Lordships' House. I do not propose to repeat the objections which I then raised, but I should like to say this. Perhaps your Lordships may recollect that in one of Burke's famous Letters to the Sheriffs of Bristol he talked of the "old cool-headed general law of this country" as at least equal to law dictated by heat. I hold that it is the old cool-headed general law of this country to which we ought to appeal, particularly in time of crisis. If our old cool-headed general law wants reform, I for one should be foremost in advocating it; but you cannot show a greater distrust, I think, of our general law than when at a time of difficulty and crisis you say you must have some special tribunal because the old general law cannot be relied upon to meet the difficulty.
I am the last person to under-rate the serious nature of the present national crisis. I believe I feel it more severely than a great many other people do, judging by what I hear. But that crisis has not affected the availability of our Common Law Courts; and if whenever a national danger or national crisis arises, though our Common Law Courts are still open and available, they are put on one side in order to raise some sort of special tribunal, I think it is a very evil precedent indeed. I quite agree, of course, that when the ordinary Courts are not available we must have recourse to special tribunals, but it is not suggested that the present crisis has in any sense made our old Common Law Courts not available at the present time. In my opinion, so long as they are available the greater the crisis and the greater the national difficulty the more we ought to rely on the Courts which have been established and handed down to us under the best conditions of procedure in order that the guilty man may be convicted, but what is, perhaps, quite as important, particularly in time of panic, that the innocent man should be acquitted. I agree with what was said by the noble and learned Viscount on the Woolsack, that a Court-Martial is at least as likely to be merciful as a jury. That is not my point. Apart from being merciful or not, I want to get the best tribunal by which the offence can be tried, and according to my view a guilty civilian ought to be subjected to the liability and 681 risks, if they are so called, of the tribunals of his country.
One other point as regards Courts-Martial, and I think it was emphasised by what the noble and learned Viscount on the Woolsack said last night. In times like these soldiers have greater duties than to deal with civilian offences on Courts-Martial. Their time is fully occupied with matters of the first importance to our country. Last night the Lord Chancellor in moving the Second Reading of the Suspension of Punishment Bill, called our attention to the great anxiety which was thrown upon the heads of the War Office in dealing with the revision and supervision of trials by Courts-Martial. No such duty in the case of civilians ought to be thrown upon them. It is putting upon them a duty beyond that which the country should require of our War Office and soldiers at the present time. Moreover, it is quite unnecessary, unless you make your premise that the ordinary Courts cannot be trusted in times of national danger and national crisis. I want to make it quite clear—and I mention it in the presence of the noble Earl, Lord Crawford—that I am not one of those who wish to put any facility in the way of a guilty civilian not getting his due deserts. On the contrary, I believe in the fullest sense that the way to ensure a fair trial is to have recourse to the ordinary tribunals of the country.
I should like to ask the noble and learned Viscount one or two points as regards the framework of this Bill. The first subsection of Clause 1 gives what I may call an option between trial by Court-Martial and trial by a Civil Court with a jury. As the noble and learned Viscount has pointed out, that is given in very general terms. Who is to decide in a particular case whether it is to go before a Court-Martial or before an ordinary tribunal? Under the Defence of the Realm Act as it stands the decision is in the hands of the military officer. Again I do not want to throw the slightest aspersion as regards the desire of every military officer to do his duty to the utmost, but it appears to me to be a serious defect in a Bill Which purports to put right a constitutional principle to leave it to the option of a military officer in any particular case to say whether one form of tribunal or the other should apply. The next point is one on which I need say only a few words, because I believe I differ from 682 most of your Lordships in the view I take. I do not like the limitation of this Bill to British subjects. I think all civilians ought to be put on the same basis, and particularly civilians who belong to allied or neutral countries. I am not aware that up to the present moment as regards any feature of our Criminal Law we have drawn a distinction between civilians generally who are resident in this country under our hospitality and British subjects. It may be necessary—I will not say more than that—in these exceptional conditions that such a distinction should be adopted for the first time, but I deeply regret it. I regret it the more for this reason. I bear in mind what Lord Robert Cecil said in the other House on this point. It introduces two grades of justice, two different tribunals dealing with civilians as regards the same class of offence. Surely it is not a right principle that you should have graded tribunals of different characters dealing with the same offence where the offender in any case is a civilian and not subject either to naval or military law.
There is one point on which I certainly desire to congratulate the Government, if I may do so. I notice that it was proposed, I think by more than one hon. Member in another place, that, putting on one side Courts-Martial and the ordinary system of law, there should be constituted some special tribunal to deal with offences at the present time. I should have opposed to the utmost any proposition of that character. To constitute a particular tribunal would, in my view, be going almost back to the Star Chamber principle as regards conditions of this kind, and I must say I congratulate the Government that they did not allow a principle of that nature to be adopted.
The next point upon which I wish to ask the Lord Chancellor a question is one which I do not think he mentioned. There is a limit placed as regards the power of Courts of Quarter Sessions. I do not want to cavil about any small matters in this Bill, but I want to say—though perhaps I am prejudiced, speaking as a chairman of Quarter Sessions—that I believe Quarter Sessions do their work quite as well as the other criminal tribunals in this country; and that is emphasised by the fact that the number of successful appeals to the Court of Criminal Appeal is less from the Chairmen of Quarter Sessions than from 683 His Majesty's Judges. I am wholly in favour of subsection (4) of Clause 1. Indeed, I think it essential that there should be a system of speedy trial in cases of this kind; and I notice that this subsection gives as regards a speedy trial the same advantage as, and perhaps a greater advantage than, could be obtained under the Court-Martial system. But those who are cognisant of criminal practice and criminal jurisdiction know that there is a difficulty when a poor man is taken out of his own county for the purpose of a criminal trial. I wish the Government could see their way to provide such financial assistance that no poor men would be prejudiced as regards a fair trial because the venue was changed in order that the trial might take place speedily.
I want to say a word about subsection (6). That subsection deals first of all with the event of invasion. I do not know whether the noble and learned Viscount on the Woolsack will agree with me that the introduction of those words into this Bill is not an extension of power in the hands of the military authorities under those conditions but a limitation of power. I do not like that. I consider the present position as regards Martial Law to be this, that when there is invasion and recourse to our ordinary Courts becomes impossible the military authorities have full power to the whole extent of the necessity which has arisen. The principle is that what necessity requires necessity justifies. I do not want that power to be curtailed by any statutory provision whatever. I think it is a most valuable power, and I want it to be kept intact as it is at the present moment. The putting in of the words "in the event of invasion" does not increase the power which the military authorities ought to have under those circumstances. It ought to be an absolute power. If the horror of invasion arises, no one recognises more than I do that the military ought to have an absolutely free hand, of course to act reasonably having regard to a great crisis of that kind. That is the only meaning of Martial Law in this country; it arises in those conditions, and I would not have it hampered in any way whatever.
I must say also that I do not like the words that follow, "or other special military emergency." I agree that if the emergency is of a character that our 684 ordinary Courts are not available, there ought to be provision for Courts to take their place. Nobody would deny that for a moment. But in the absence of invasion and as long as our Courts are available and open I do not think any Executive ought to have power propriomotu, without an appeal to Parliament, to repeal the provisions contained in this Bill and place all civilians under the régime, of Court-Martial trial. I want to make it quite clear that I am not criticising Court-Martial trial, but it is not the trial to which civilians are entitled, and it is not the best form of trial under the conditions in this country. I do not think there is any other point. I am sorry to have troubled your Lordships so long, but I regard the matter as one of great importance. Personally I thank the Government for having recognised that there was a great constitutional matter involved which had to be dealt with, and I heartily accept the Bill which has been proposed, subject only to the questions which I have addressed to the noble and learned Viscount on the Woolsack.
§ LORD NEWTON
My Lords, my noble and learned friend who has just spoken is entitled to congratulate himself upon the success which has attended his efforts, but he will pardon me if I refrain from congratulating him myself. I hope he will not be offended with me if I express the opinion that his action has not only been unnecessary but of a mischievous character, because by it the deterrent influence of this particular Act, which was its chief merit, has been almost entirely destroyed. The Defence of the Realm Bill when it was introduced some months ago represented, presumably, the deliberate conclusions of His Majesty's Government after several months of war. It was presumably founded upon the experiences of the war. It cannot have escaped anybody's notice that both here and in another place, so far as I ant aware, not the slightest attempt has been made to show that any single individual in this country has suffered any grievance under the Act.
The agitation to emasculate this Act arose, if I am not mistaken, in the first place through the Press. The Press was apparently under the impression that editors were liable to heavy penalties under the Act. I cannot conceive why the Press should have entertained any apprehensions whatsoever. So far as I am able to observe, 685 the Press is at liberty to do whatever it chooses unless it takes upon itself to publish adverse criticisms upon Ministers or endeavours to publish news of reverses to our arms. And I should have thought that the fact that Irish newspapers, for instance, have been allowed openly to advocate sedition with absolute impunity, and that cranks and fanatics over here have been allowed, also with absolute impunity, to conduct a campaign against inoculation and vaccination, contrary to the expressed opinions of His Majesty's Government—I should have thought that these facts ought to have reassured them as to their own safety. I should also like to point out that under this Act as it existed and, for all I know, as it exists under its amended condition, His Majesty's Government, should they wish to do so, would be enabled to rid themselves of their most formidable opponents with no trouble at all under the provisions of the Act. I presume that they could incarcerate Mr. Gibson Bowles or Mr. Maxse, and neither of those gentlemen would have any remedy whatsoever.
I cannot help thinking that noble and learned Lords, in their conduct with regard to this particular measure, have been suffering under a complete, or at all events a very strong, misapprehension of public feeling, and that they have been unconsciously swayed to a great extent by their professional instincts. We all know that the legal profession in this country forms a gigantic trade union, starting with the Lord Chancellor and working down to the most impecunious briefless barrister. This gigantic trade union governs the country. I do not think the ordinary citizen realises how we are governed by that profession. Take the Prime Minister. He is himself a retired distinguished barrister. The Chief Secretary for Ireland is a barrister. The Home Secretary is a barrister. The Chancellor of the Exchequer is a solicitor, a sentimental solicitor—a rather unusual combination. Up till a short time ago the great offices of Secretary of State for War and First Lord of the Admiralty were held by members of the legal profession. I am inclined to think that other prominent members of the Government, if they were forced to state their occupation, would be obliged to describe themselves as, so to speak, semi-fledged lawyers—and I am not sure that Lord Crewe would not come under that category.
686 The fact is that in time of peace we are completely governed by the legal profession, and, not satisfied with that, the legal profession desires to govern us in time of war. It is intolerable to them, constituting as I say this gigantic trade union, that their functions should be interfered with by any one or any thing. Their feelings on the subject are probably very much the same as the feelings of the medical profession would be if it were proposed to take their business away from them and put it in the hands of Christian Scientists, or chemists, or people of that description. The whole tenor of the debates and of the arguments put forward by noble and learned Lords and by learned gentlemen in another place may be summed up in the very familiar Latin tag Cedant arma togœ. As I said before, it appears to them intolerable that any one should usurp their functions; and the curious thing is that they are obviously under the belief that every member of the public thinks the same thing too. They are under the impression that it is a horrifying thing to an ordinary member of the community—say to a person like myself—that he should be tried by some one who is not a qualified lawyer. I say with the utmost deliberation that if I were charged under this Act, and if I were innocent, I would just as soon be tried by my noble friend Lord Cheylesmore as I would by the Lord Chief Justice or any other eminent Judge. In fact, I should prefer it, because obviously it would be shorter and therefore much cheaper. Again, if I were innocent I should most certainly defend myself instead of employing a very expensive member of the gigantic trade union to which I have alluded. But, of course, if I were guilty I should naturally avail myself of the loopholes so kindly provided for me by my noble and learned friend. I should claim to be tried in the Civil Court, and of course I should retain some expensive learned friend of his in order to defend me, and I should use every artifice in order to prolong the trial as far as possible.
Let me refer to two typical cases which have occurred since the war began. Take, for instance, the case of the man Lody. That man was tried before a Military Court. Upon his own confession he had a perfectly fair trial. He went out of his way to volunteer that statement. Well, that man was condemned and shot. If my noble and learned friend had had his way, Lody 687 would have been tried in a Civil Court. He would have appealed, and very likely at this moment would be in gaol with a large portion of the Press clamouring for his release under an amnesty. Then take the case of the man Ahlers. Ahlers openly avowed and boasted that he had helped his fellow-countrymen to escape from this country to go to Germany in order to fight against us. Well, he was tried in a Civil Court by a Judge. He was found guilty, and was sentenced to a term of imprisonment. But he appealed. Thereupon a number of other Judges sat upon the case, and, by the exercise of what I should think the Prime Minister would call "juridical nicety," managed to discover that some small regulation had been violated, so to speak; and Alders was acquitted. That may be excellent law, but to my mind it is the negation of common sense. Here was a man who openly admitted that he had committed a crime; yet in spite of that, in consequence of the exercise of juridical nicety, he is returned to the bosom of his family and for all I know may be now living as a highly respected individual in this or his own country.
The illusion, if I may call it so, entertained by my noble and learned friend is not confined to the belief that everybody in this country is horrified at the idea of being tried before a military tribunal. He is also under the strange impression that any departure from Magna Charta is viewed as a sort of intolerable danger, even though the danger may be only a temporary one. I do not know what the opinion of other noble Lords may be, but certainly it is my profound conviction that no sensible people in this country are in the least worried about Magna Charta at this moment any more than they are about the Constitutions of Clarendon, or the Domesday Book, or anything else. What all sensible people—with the exception, perhaps, of those who can speak about the urgent necessity of holding Ascot whether the British Empire falls or not—are thinking about is the desirability of bringing the war to an end at the earliest possible opportunity; and so far from resenting any infraction of Magna Charta or anything of that sort, I think what the public would resent most is anything that would interfere with the speedy procedure of justice where national enemies are concerned.
Far and away the soundest sentiment which has been expressed in this debate or 688 in the debates in another place was a phrase made use of by my noble friend the Leader of the Opposition, who said that in his opinion it was infinitely preferable that we should run the occasional risk of a miscarriage of justice than that the security of this country should be in danger. I cannot help thinking—perhaps I am prejudiced—that the attitude taken up by these distinguished members of the legal profession upon this point is an instance of the principle, unfortunately so popular in this country, of "Business as usual." It is to me a painful discovery to see that persons of this eminence are so destitute of a sense of proportion. The noble and learned Viscount on the Woolsack, the Prime Minister, and other distinguished men, tell us from time to time that we are struggling for our existence. Yet when we are told that we are struggling for our existence and that every effort must be put forward if we are not to be crushed, we get noble and learned Lords coming forward and telling us that we are in danger of being permanently enslaved because there is a chance of iudicium parium or Nullus liber homo being jeopardised. I confess that the action of noble and learned Lords upon this question—I hope they will not be offended by my saying so—seems to me to bear some analogy to the action to which I have already alluded of other eminent and influential persons in this country who think that nothing should be altered and that all our amusements, racing especially, should go on as usual. It seems to me to show a deplorable want of proportion and a deplorable want of sense of the gravity of the situation that we should be occupying ourselves with things of this kind.
I feel so strongly on this matter that were I a person of greater importance I would do my best to restore this measure to its original position. That, I know, is a perfectly hopeless task for a person in my position. And were I fortunate enough to be able to carry some Amendments in the nature of the views which I have expressed, I suppose that I should be told that I was cutting short the holiday of the Speaker of the House of Commons or of a deserving door-keeper or some one of that kind, who ought to be liberated at the earliest opportunity. I am therefore obliged to content myself with making this protest, and I greatly regret that His Majesty's Government have so decisively 689 changed their attitude upon this question. Their attitude at the first was firm and sound enough, but they have now yielded to what I can only describe as a hollow and unsubstantial agitation promoted by my noble and learned friend (Lord Parmoor) who sits below the Gangway.
THE EARL OF DESART
My Lords, I do not know whether my noble friend who has just addressed the House will be disappointed or pleased to learn, if the views of the important trade union, as he deems it to be, are correct, that I stand somewhat in the position of a "blackleg," because I am quite unable to take the view, at any rate to its full extent, expressed by my noble and learned friend Lord Parmoor. His attitude appears to me to be characterised by extreme simplicity. It is that, short of absolute necessity, everything shall go on during the course of this great war exactly as it did in time of profound peace. I cannot accept that view. But in saying that, I am not necessarily committing myself to any particular view of what steps should be taken or what should be done.
We have for a considerable time been in a position in which the very life of this nation and the future of civilisation are at stake. This is like no war that has ever taken place before. The systematised preparation for it by our enemy is bearing fruit now, and every safeguard that can be taken should be taken. On the Government, and on the Government alone, must rest the responsibility of what those safeguards should be. My attitude is that if the Government come here and say, "We with our knowledge, which you have not got, and with our experience of what has happened, which you cannot have, say we require this or that in order to ensure as far as we may the safety of the Realm," then speaking for myself, would give it them in full measure. I somewhat share the regret of my noble friend Lord Newton that the Act of 1914 has been modified to the extent to which it has been, but I must accept the explanation which has been given for that change, though the noble and learned Viscount on the Woolsack must forgive me for saying that, having regard to what was done when the Act was passed and what happened subsequently, we were left in sonic perplexity as to whether the reason for the modification was not somewhat coloured by the 690 pressure put on the Government by noble Lords in this House to whose words we always attach the greatest weight.
But I really only rose for the purpose of calling attention to one or two things which seem to me to require a little consideration. I say at once, quite frankly, that I have no intention of moving Amendments. I think Amendments had better not come front us. But it does seem to me that the position of this Bill is in sonic respects not quite satisfactory. What we have conic to now is that a sharp distinction is drawn between British subjects and aliens. It is true that under sub-clause (1) anybody may be tried in the ordinary Courts, but under sub-clause (2) it is only a British subject who has the right to claim that trial. There is no question that if he puts in a claim according to the rule he is absolutely entitled to be tried by a civil Court, subject, of course, to the emergency provision in the Bill. I do nut think that would always work out quite satisfactorily. One could put hypothetical cases in which there might be a difficulty. I will only put one, and I do not think it is a fantastic case. If there were some obvious case of spying, in which a German or other alien and an Englishman were concerned, both caught, so to speak, red-handed, that would be a case of a class which should be promptly tried by Court-Martial. But there would be this difficulty. You could not try the Englishman by Court-Martial. Therefore you would have to take the German into the civil Courts or try the two men separately at different times and in different places and with possibly different results.
What I want with great respect to suggest is whether in special cases the claim by a British subject to be tried in the civil Courts might not be subject to consideration. If objections to the Executive acting in these matters were overwhelming, would there be the same objection to an application to the Court of King's Bench? There might be a power on the part of the Crown to apply to the Court of King's Bench and satisfy the Court that particular cases ought to be tried by Court-Martial. The power would very rarely be exercised, but it would avoid the difficulties which might otherwise arise. It does seem to me desirable that there should be this power in an exceptional case. Of course I agree with my noble and learned friend Lord Parmoor that as a 691 general proposition every one would prefer being tried by the ordinary Courts in the ordinary way. But even though the ordinary rights and liberties of the subject should suffer, I am perfectly sure I am right when I say that ninety out of every hundred people in this country would be willing to run some risk if by so doing they contributed by one iota to the safety of the country in this hour of its great trial.
§ LORD CHARNWOOD
My Lords, there are two points in connection with this Bill upon which I should like an explanation. I cannot understand why the Bill should not apply to the soldier serving in this country or to the sailor on shore just as much as it does to the civilian. We are discussing a Bill which rests, I believe, on grounds of what I might call general principle or sound sentiment, though I doubt whether it is of very great practical importance. But it is a question of abiding by a very sound English tradition, and I am going to assume that the Bill is justified on that ground and that the principle is important. Still I cannot see why that principle should be applied to the civilian alone and not to the person who is subject to the Naval Discipline Act or to Military Law. I am perfectly aware that the soldier and the sailor are subject at the present moment, and always have been, to special tribunals and to a special law of their own; but, as I understand, the necessity for that is for disciplinary purposes. Their position in that respect is analogous to the position of a clergyman, or a solicitor, or a member of a club, who also are subject to certain disciplinary tribunals which have no jurisdiction over other men. But this Defence of the Realm Act is not connected with matters of discipline, but with crimes of the nature of treason. It appears to me to be making a wholly false and unnecessary distinction between two men who might be charged with an offence of that kind, one of them being a soldier and the other a civilian, to say that the soldier should not have the right of being tried by the tribunal which it is assumed a civilian ought justly to be entitled to go before. Of course, there may be some reason of practical convenience for that of which I have not thought, but I cannot see why a soldier charged with an offence of this kind should be necessarily hound to be tried by a Court-Martial.
692 My other point is this. I imagine that in some cases the evidence required to prove a charge under this Bill might possibly be of a highly confidential nature. For the purposes of the accusation, and perhaps also for the purposes of the defence, it might be necessary to introduce matters of importance which it would be contrary to the interests of the country to make public, and it might be deemed desirable that such evidence should be treated as evidence given before a Court-Martial. I assume that there are means in such cases of excluding the public from a Court. Nevertheless a number of important matters of a military nature might have to be disclosed to the twelve jurymen, who might be unable to appreciate the necessity of not talking about them afterwards. There may be nothing in this, but I am simply suggesting it, because I am sure that the noble and learned Viscount will give full consideration to it if he has not already done so. Is it not possible to make some special provision which would prevent the Bill operating so as to disclose publicly matters which, for military purposes, should be kept secret?
§ THE EARL OF PORTSMOUTH
My Lords, there is one point which seems to me rather difficult to understand in the Bill, and that is Clause 1, subsection (7):—The expression 'British subject' in this section includes a woman who has married an alien but who before the marriage was a British subject.I do not quite understand the meaning of that subsection. As far as I gather from reading the words literally it means that in the case of a German marrying an Englishwoman and both being charged with, say, the offence of spying, the wife will have the right to be tried by a different tribunal. But what seems to me more remarkable than the inconvenience of that from a practical point of view is this. I should have thought that it was reasonable and a general condition of the law that the wife assumes the nationality of her husband, and I do not understand why the Bill should make this extraordinary exception.
THE EARL OF CRAWFORD
My Lords, Lord Charnwood has suggested that this option should apply to soldiers and sailors.
THE EARL OF CRAWFORD
And Lord Parmoor has suggested that it should apply to alien enemies. I hope the Government will give way on neither point. I am sure that the Bill contains sufficient concessions to meet the requirements of the case. It is already perfectly well known that some of our bitterest enemies in this country are British subjects. The man whom the Government thought a sufficient enemy of this country to be tried for treason some months ago was a British subject. It is ridiculous to suggest that we should carry the principle in this Bill further and confer the privilege of option upon aliens. For my own part I would have gladly supported the Government if they had confined the definition of "British subject" to one who had been a British subject for five or ten years—some specified period. Certainly persons who became British subjects the day before the war, or the fortunate ones who became British subjects weeks or months after war was declared, should not be able to secure under this Bill equal rights with those who are British born. And when it is proposed to confer this optional right upon alien civilians, I must again ask what is connoted by the term? Apart from prisoners of war, all aliens in this country are technically alien civilians, there being no portion of our territory occupied by our foes. But though they are alien civilians in that aspect, they are military men none the less. It is perfectly well known that among the adult male alien enemies living in London literally thousands are German Reservists and pro tanto under German military law. It is grotesque to suggest that those persons should have rights and privileges—for the Lord Chancellor himself admits these to be rights and privileges—conferred upon them; and I hope that the Government will not give way any further upon that point.
I have a certain doubt in my mind about the delays which this Bill may involve. I am anxious for promptitude and for despatch. What is the experience of the civil Courts? A man was proceeded against the other day for selling bad meat to the troops in London. It was three months before the Court of First Instance was able to give its judgment. Of course, there will be endless appeals; and the war may be over—I hope it will be over—before that case is settled by the final Court. Now, here you start off with a delay. There have to be Regulations. I hope they will be rather simpler than the 694 Regulations under the original Act. The particulars of the prosecution have to be supplied in writing to the prisoner. That takes days. Then the prisoner has six days in which to settle who shall try him. There is another delay. I defy you to commence any trial under this Act under ten days or ay fortnight, because every prisoner will take as long as he can, and the advocate of every prisoner will take advantage of everything under Clause 2. And starting with these gratuitous delays, you will also have all sorts of frivolous objections raised, I want promptitude and despatch. Soldiers are more capable of giving it than others, and they would probably also give better law.
I strongly approve of subsection (6), to which Lord Parmoor took great exception. He evidently thought that the words "other special military emergency" referred to some mysterious thing apart from invasion. I do not know what was in the minds of the Government, but I can imagine a military emergency of a very concrete character which might prevent the work of the civil Courts proceeding in the normal manner, and I am sure that that particular phrase ought to be left in. I implore the Government not to give way any more, and at any rate to bear in mind that one of the elements of the power of the Act is the knowledge on the part of the country that justice is swiftly rendered. There is one point upon which I wish to ask a question. It may have been a mistake on the part of the printer or the draftsman, but I should like to ask why the right of option is denied to Scotland. Subsection (2) does not apply to Scotland.
§ VISCOUNT BRYCE
My Lords, I rise not to enter into the discussion of the points of detail which have been brought before the House by several speakers, but rather to deal with one assumption which seems to me to underlie the remarks that have been made against this Bill. I ought, however, in passing to say that I cannot agree with my noble friend Lord Charnwood that there is any case whatever for extending the Bill to persons in the military or naval service of the Crown. They are in an entirely different category, and I do not think it would be consistent with the scheme of the Bill to extend the option to them. I come back to what seems to me the fundamental assumption of those who have seen objections to this Bill, an assumption 695 which is quite unproved and which I think is quite baseless—namely, that trial by Court-Martial will have any greater deterrent effect than trial by Judge and jury. As far as I can see, juries are at least as anxious to convict as a Court-Martial would be. I agree with what was said in the House of Commons, and I think by the noble and learned Viscount on the Woolsack, that a jury in the present state of the public mind is at least as likely to be prone to conviction as a Court-Martial.
In some respects I can imagine that the members of a Court-Martial, whose nerves have been steeled by a long experience of war and who are less apt to be subject to sudden panic than civilians, might be inclined to be more lenient than a jury would be. But a Court and a jury have by long custom been approved amongst us, and in many other countries which have followed our example, as being the best means of arriving at the truth; and except in the case of such an emergency as precluded the regular sittings of the Courts I cannot see why we should depart from what our experience has proved to be the best way of trying offences. If it is a, question of promptitude, I make no doubt at all that the Government will see that all cases of importance are conducted with despatch. There is no reason, after the accused person has had the opportunity of saying in which way he wishes to be tried, why he could not be tried in the civil Courts with as much despatch as before a Court-Martial. I am sure it would be to the satisfaction of the whole public that the use of Courts-Martial should be limited to the cases to which it is limited by this Bill and not extended to the general civil population.
This House may feel glad that the objections taken here to a measure which had inadvertently and perhaps in undue haste passed the House of Commons have received the attention of the Government, and that the Government are now doing what they can to restore those ancient safeguards for the liberty of the subject which are one of the oldest and most treasured parts of our Constitution and which it would be a very great pity to depart from except under proved necessity. No such necessity has been proved. I agree with the noble Earl, Lord Crawford, that the supreme duty of the hour is to see that all offences hostile to the interests of this country are detected and tried as 696 quickly and as efficiently as possible; but there is no reason to believe that this result will be less duly attained under the Act as it is now proposed to be amended than it would have been under the Act as passed originally in December last.
§ THE MARQUESS OF LANSDOWNE
My Lords, this Bill represents the second thoughts of His Majesty's Government with regard to this important question, and I should be sorry to suggest that His Majesty's Government are not entitled to have second thoughts in regard to this or any other of the proposals which they put before us. In these days we find ourselves confronted with a series of emergency measures no doubt necessary, but which, from the very circumstances of the case, must be hastily prepared, and which we are obliged to discuss hastily—hastily does not really sufficiently express it, because in many cases there is denied to us altogether any opportunity of anything which could properly be called discussion. In this case I can quite understand that second thoughts should have occurred to His Majesty's Government; but I am bound to say that it does seem to me unfortunate that they should be obliged, in appearance at all events, and I think in fact, to recede from the position which they took up not many weeks ago after they had already had three months experience of the condition of this country during the present war. We all carry in our minds the emphatic words with which the noble and learned Viscount on the Woolsack dwelt on the absolute necessity of placing upon the Statute Book what he called deterrent legislation, adequate to guard against the evils which he then anticipated; and it is no use disguising from ourselves that this Bill is bound to be very much less of a deterrent than the Bill originally passed by His Majesty's Government.
When my noble and learned friend Lord Parmoor brought his Bill before the House the other evening, I ventured to urge him as strongly as I could not to press it forward for the moment. He was good enough to act upon that suggestion, and I think that the House must now feel that he was amply justified in the course which he took. Because whatever this Bill is, it differs very widely from the Bill of my noble and learned friend. The noble and learned Viscount on the Woolsack mentioned, I think, three points in particular in which 697 the two measures differed. The Bill of my noble and learned friend would have given the right to claim a trial before a Judge and jury only in the case of offences punishable by the law of England. This Bill goes a great deal further, and enables the same claim to be made in the case of offences committed in contravention of the numerous Regulations which have been issued under the Defence of the Realm Act. Then there is this very vital difference. The Bill of my noble and learned friend was not restricted, as is the Bill of the noble and learned Viscount, to the case of British subjects. My noble and learned friend would have given a very much wider scope to his measure. Finally, the Bill of the noble and learned Viscount contains a provision which, whether it is entirely adequate for the purpose or not, is at any rate a valuable provision—I mean the clause which secures a certain amount of promptitude where the case is tried before a civil Court. If we are to have a Bill of this kind, I recognise that in the Bill of the noble and learned Viscount there are at all events these two valuable provisions—the provision providing for promptitude, and the provision to be found in subsection (6) under which, in a case of invasion or emergency, the machinery of this Bill ceases to operate. Those provisions go far to mitigate the objection which I should otherwise have felt to these proposals.
I will only say a word or two upon a point which has been a good deal discussed during the course of these debates—I mean the question of the limitation of the right to claim trial by a Judge and jury to British subjects. Undoubtedly that limitation does raise difficult and embarrassing questions. In the first place, there is the question which I think has been raised this evening, When you talk of a British subject what do you mean? Are you going to give this privilege to naturalised British subjects? Are you going to give it to British subjects who have only been naturalised for a few weeks or a few months? I hope the noble and learned Viscount will consider the suggestion that has been made to the effect that that particular provision might be a little stiffened up. I believe I am right in saying that it is not an uncommon case to find a naturalised British subject who still owes allegiance to a foreign Government. In such a British subject to be allowed to 698 claim the privilege of a trial by a civil Court? And remember that you are allowing him to make this claim at the very moment when you are denying to neutral aliens the right of making a similar claim. I am bound to say that I do not see how the noble and learned Viscount could have drafted his Bill at this point otherwise than he has; but there the fact is, that you are going under this Bill to say to a neutral, whose loyalty may be unexceptional, who may be a subject of an allied and friendly Power, "We will not allow you to claim the kind of trial which we claim for our own subjects, and you must be content with something which, upon the face of it, looks less fair to you." I think the point is more one of form than of substance, because I agree with my noble friend Lord Newton, who holds, as he told us just now, that the accused person need not have the slightest apprehension of being treated otherwise than with absolute fairness if tried before a Court-Martial. But the difficulty is there. I cannot see how it is possible to distinguish between aliens to whom you would extend this privilege and aliens to whom it cannot safely be extended. It seems to me that you would in each case find yourself involved in a very difficult and laborious examination of the merits, and you would, in fact, be attempting more than you could possibly perform. On the whole I venture to express my agreement with the noble and learned Viscount when he proposes that these privileges should not be extended to other than British subjects. I do not desire to trouble the House further. I feel that throughout this discussion there has been a tendency to assume that just treatment is only to be obtained by trial by Judge and jury. I have my doubts upon that. I do not feel inclined to accept that proposition as unreservedly as many of my noble friends accept it. I regret that this Bill should have been found necessary, but I certainly do not propose to trouble the House with any suggestions for its alteration.
THE LORD CHANCELLOR
My Lords, I wish to answer the various points that have been raised in the course of the debate. The noble Marquess who has just sat down spoke, as he usually does, with conspicuous fairness about this Bill. He has recognised that it is a very difficult subject, and one which would have been much better dealt with in a time which was not abnormal. 699 But as we have had to deal with it under these emergency circumstances I am glad that he takes the view which he does. At any rate I think it will he agreed that we have done our best to find a solution, and we are glad to think that the solution we have found has something to recommend it. It is quite true that there may be neutrals, as the noble Marquess pointed out, who may seem to be not so well off as British subjects. That brings me to the first question that was put by Lord Parmoor, who asked whether it was desirable that the selection of the tribunal should be left to the military officers in the case of an alien. What is done under this legislation is carried out by means of Regulations, and the Regulations are under the control of the Executive. The Executive always has power to direct the military officers, and we should take care to watch any case in which a friendly alien found himself in any hardship and extend to him the same privileges as he might have if he were in a more favourable position.
THE LORD CHANCELLOR
Under the Regulations the matter is placed in the discretion of the military authorities, but it is always open to the Executive to amend the Regulations and say that in any particular case the military authorities should not proceed in that way. The result of that state of things is that the military authorities always have to consult the Executive before any steps are taken. Lord Parmoor also pointed to this, that if matters had remained as he had wished—that is to say, if the Bill applied to other than British subjects—you could try two offenders together, one being an alien and the other a British subject. So you can now. Under the provision as it now stands for the rapid bringing of a case before the tribunal for trial, I see no reason why an alien should not in a suitable case be tried by a Judge and jury, and he might not come off as well as he might before a Court-Martial. At all events the power is there to try the two offenders together, and that is the advantage of the change which we have made from Lord Parmoor's Bill. The noble and learned Lord also drew attention to subsection (6) of Clause 1, and said that by inserting the words "in the event of invasion or other special military emergency" there was a limitation of the power. He referred to the 700 larger powers which may be exercised under what is called Martial Law, which means a general emergency law. It is not law at all, but merely means that a military tribunal in the supreme defence of the country is substituted for the ordinary tribunals. If No. 39 of the Regulations under the first Defence of the Realm Act is looked at it will be seen how the matter is dealt with.
Then there were other points. Lord Desart referred to the question of exercising a discretion. I think that if you took the matter to the Court of King's Bench, as he suggested, the Court of King's Bench would be apt to say that the case should not go to a military tribunal. I am afraid that it would be extremely difficult to allow the matter to be dealt with subject to a discretion.
THE EARL OF DESART
Although I suggested the Court of King's Bench, there are other ways of effecting the same object.
THE LORD CHANCELLOR
The noble and learned Earl may rest assured that every possible way of dealing properly with the matters concerned has had our earnest attention. Of course, new questions may be raised in each case, but I do not think that in the class of case with which this Bill is intended to deal British subjects charged with offences under it should be dealt with under military and naval law except in certain circumstances. Then Lord Charnwood asked why the option should not apply to soldiers and sailors, while Lord Newton asked why it should apply to any one at all. The divergent views held by those two noble Lords show the impossibility of getting anything like general agreement upon a Bill such as this, touching, as it does, these very difficult questions. That is a difficulty which I fully recognise.
§ LORD CHARNWOOD
I am inclined to agree with what Lord Newton said, but why should it not apply to soldiers and sailors if to any one at all?
THE LORD CHANCELLOR
The noble Lord asks, Why should it not apply to soldiers and sailors? It could not if you are to preserve at all the theory of military law, which is that they must be subject to their own tribunals and their own law. Then Lord Newton said that the Bill was obviously the concoction of a powerful trade union which was asserting itself unduly in the government of the country. With 701 these divergent views about the Bill your Lordships will appreciate how impossible it is to try and meet them all, and I must content myself with trying to steer a middle course. Lord Crawford raised a point, quite a good one, about subsection (2) not applying to Scotland. I had already noticed it. It is a mistake either on the part of the printer or of the copyist, and I propose to move an Amendment to meet the difficulty to which the noble Earl drew attention. Another point was taken by Lord Chain-wood about secrecy. I quite agree that there are many cases in which it would be desirable that there should not be undue publicity in the case of military proceedings, and I propose to move the insertion of a clause giving a discretion to the Court, in a case where the public interest would suffer by publicity, to take the evidence with closed doors, but providing that the sentence is always to be pronounced in public. That is consistent with the principle which was recognised in the case of Scott v. Scott on the doctrine of publicity. I think that is a right principle. What I propose to do is this. If your Lordships will pass the Second Reading I will ask the House to go into Committee simply for the purpose of putting in the two Amendments of which I have spoken. Then I think it will be your Lordships' desire to take the Report stage on Monday, on which day I hope it will be possible to get the Bill through its subsequent stages so as to get the assent of the other House. At any rate the Bill will be reprinted at once, and there will be a better opportunity of dealing with it again on Monday.
§ THE EARL OF PORTSMOUTH
Will the noble and learned Viscount explain the point about subsection (7)—namely, why an English woman who marries an alien should have the right to claim to be tried by the Civil Court? Why should she not take her husband's nationality?
THE LORD CHANCELLOR
In the ordinary way such a woman does take her husband's nationality, but it is a principle which has received attention from time to time in legislation and one which varies amongst different people. In this case it often happens that the wife of an alien is British born. But certainly she will not be less likely to be punished if she comes before a Judge and jury.
§ On Question, Bill read 2a.702
§ Then (Standing Order No. XXXIX having been suspended) Bill committed to a Committee of the Whole House forthwith.
§ House in Committee accordingly.
§ [The EARL OF DONOUGIMORE in the Chair.]
§ Clause 1:
§ Right of British subject charged with offence to be tried by civil court.
§ 1.—(1) Any offence against any regulations made under the Defence of the Realm (Consolidation) Act, 1914, which is triable by court-martial may, instead of being tried by a court-martial, be tried by a civil court with a jury, and when so tried the offence shall be deemed to be a felony punishable with the like punishment as might have been inflicted if the offence bad been tried by court martial.
§ (2) Where a person, being a British subject but not being a person subject to the Naval Discipline Act or to military law, is alleged to be guilty of an offence against any regulations made under the Defence of the Realm Consolidation Act, 1914, he shall be entitled, within six clear clays from the time when the general nature of the charge is communicated to him, to claim to be tried by a civil court with a jury instead of being tried by court-martial, and where such a claim is made in manner provided by regulations under the last-mentioned Act the offence shall not be tried by court martial:
§ Provided that this subsection shall not apply where the offence is tried before a court of summary jurisdiction:
§ Provided also that before the trial of any person to whom this section applies, and as soon as practicable after arrest, the general nature of the charge shall be communicated to him in writing and notice in writing shall at the same time be given, in a form provided by regulations under the said Act, of his rights under this section.
§ (3) The Vexatious Indictment Act, 1859, as amended by any subsequent enactment shall apply to a felony under this section as if it were included among the offences mentioned in section one of that Act, but a felony under this section shall not be triable by a court of quarter sessions.
§ (4) For the purpose of the trial of a person for a felony under this section the offence shall be deemed to have been committed either at the place in which the same actually was committed or in any place in the United Kingdom in which the offender may be found or to which he may be brought for the put pose of speedy trial.
§ (5) An indictment under this section shall not be deemed void or defective by reason that the facts or matters alleged in the indictment for the felony amount in law to treason; and if the facts or matters proved at the trial of any person indicted for any felony under this section amount in law to treason, the person shall not by reason thereof be entitled to be acquitted of such felony; but no person tried for such felony shall be afterwards prosecuted for treason upon the same facts.
§ (6) In the event of invasion or other special military emergency wising out of the present war, His Majesty may by Proclamation forthwith suspend the operation of this section, either generally or as respects any area specified in the Proclamation, without prejudice, however, to 703 any proceedings under this section which may be then pending in any civil court.
§ (7) The expression "British subject" in this section includes a woman who has married an alien but who before the marriage was a British subject.
§ (8) In the application of this section to Scotland "a civil court with a jury" means the High Court of Justiciary, and subsection (2) shall not apply.
§ (9) This section shall apply in the case of offences committed and persons arrested before as well as after the passing of this Act.
§ THE LORD CHANCELLOR then formally moved the insertion of the new subsection which he had foreshadowed.
§ Amendment moved—
Clause 1, page 1, line 29, insert as a subsection:
(3) In addition and without prejudice to any powers which a court may possess to order the exclusion of the public from any proceedings, if in the course of the trial of a person for a felony under this section application is made by the prosecution, in the interests of national safety, that all or any portion of the public should be excluded during any part of the hearing, the court may make an order to that effect, but the passing of sentence shall in any case take place in public.—(The Lord Chancellor.)
THE EARL OF CRAWFORD
So far as it goes, that meets Lord Charnwood's case. But Lord Charnwood was also afraid of the jury gossiping. As the noble and learned Viscount will remember, in a Court-Martial the Court is sworn to secrecy, but no such procedure takes place in a normal jury case. I suggest that that should be borne in mind.
THE LORD CHANCELLOR
I will bear it in mind. There are always measures that can be taken. In cases of this kind the Judge would impress the need for secrecy upon the jury, and have them kept under observation.
THE EARL OF CRAWFORD
I should also like the Judge kept under observation, and I suggest that that should be put in the Regulations.
§ On Question, Amendment agreed to.
Clause 1, page 2, subsection (8), omit "(2)" and insert "(4)."—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Remaining clauses agreed to.
§ Amendments reported.
§ Bill to be read 3a on Monday next, and to be printed as amended. (No. 55.)