§ Brought from the Commons; read 1a, and to be printed.
§ THE SECRETARY OF STATE FOR FOREIGN AFFAIRS (THE MARQUESS CURZON OF KEDLESTON)
My Lords, I beg to move that Standing Order No. XXXIX be suspended for this day's sitting in order to take the First and Second Readings of the Restoration of Order in Ireland (Indemnity) Bill.
§ Moved accordingly, and, on Question, Motion agreed to.
§ THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY)
My Lords, in pursuance of the Resolution which has just been passed on the Motion of my noble friend the Leader of the House, I rise to move the Second Reading of this Bill. Your Lordships have the advantage of having already had the subject under very careful discussion before the Whitsuntide Recess. If noble Lords will carry their memories back to that debate they will remember that we went thoroughly into the situation which had resulted from the recent judgment in the Court of Appeal, which found that the action of the Government in imprisoning the deportees in Ireland was illegal. It became necessary therefore to consider the course which ought to be pursued in consequence of that decision.
It is clear that the decision as it stands would leave it open to any interested party to proceed against those who were responsible for carrying out the action which has now turned out to be illegal— 357 namely, my right hon. friend the Secretary of State for the Home Department and those who acted under his direction. Therefore, I think, it would appear to everybody to be necessary that some steps should be taken to place those persons beyond the reach of any adverse consequences in respect of actions which they took in good faith. I do not think I need go very fully into the subject but, as your Lordships are aware, this action of the Home Office purported to be taken in pursuance of the Restoration of Order in Ireland Act, 1920. That Act was passed by the late Government and, amongst other provisions, contained a provision enabling certain Regulations to be made for carrying the Act into effect. These Regulations were required to be laid before Parliament, and having been so laid before Parliament for a certain period, they had the force of law.
Amongst those Regulations was one with the name of which your Lordships are familiar—namely, Regulation 14B under which it was possible, upon the coming into force of that Regulation, to intern persons who were reasonably suspected of being engaged in action which was destructive to good government and order in Ireland, in any place which might be directed by constituted authority. I say that the Regulation made that the law, and there was no doubt that it was the law as passed by the two Houses of Parliament in the Restoration of Order in Ireland Act and carried out by Regulation under that Act duly laid before Parliament.
Until a certain date—namely, December 6 of last year—there was no question, and there could be no question, as to the legality of any such action as was subsequently taken by my right hon. friend the Secretary of State for the Home Department. I dwell upon that point because, although, of course, it was a very grave matter indeed to interfere with the liberty of the subject without due process of law—I share to the full all that the noble Viscount the Leader of the Opposition said on that point when the subject was last under discussion—yet, up to December 6, 1922, that undoubtedly could have been done by the full authority of Parliament. The matter had been duly discussed and considered by the Government of that day 358 and by both Houses of Parliament, the House of Commons and the House of Lords, and they had come to the conclusion, for very grave reasons no doubt, that this very special deviation from our ordinary procedure ought to be permitted having regard to the very serious condition of affairs in Ireland.
That remained the law—undoubtedly and unquestionably the law—until the passage of the Act constituting the Irish Free State. Where the difference comes in, where, that is to say, my right hon. friend has been found by the Courts to have made a mistake, is that he was advised, and assumed, that that which was legal before the establishment of the Irish Free State remained legal after that had become the fact. It is because of that mistake that we now ask your Lordships to agree to an Act of Indemnity. The point which I am venturing to make is a very important one because your Lordships will see that it was only, as it were, a mistake as to a point of time. Had the action of the Home Secretary been taken in the earlier part of December there would have been no question of its legality; but because it was not taken until a few weeks later it became illegal and has now to be dealt with. That was found to be so by the celebrated judgment of the Court of Appeal with which all your Lordships are familiar.
I have stated the case to your Lordships as it has been put before me from its legal aspect, but looking at it not from its legal aspect but from its practical aspect, I would ask your Lordships to remember that we were not dealing with an ordinary state of things but with a condition of grave disorder in Ireland. There was, in point of fact, a conspiracy to destroy the Free State. Your Lordships are aware that there are several cases pending in the Courts at this present moment under the ordinary law, under which persons are being prosecuted for acts which it is alleged they committed in connection with this conspiracy. Therefore it would not be proper for me to recite any of the evidence upon which the Government relied. I am not sure whether it is not a little pedantic to go so far as this, but when the point was raised in another place objection was taken to quoting the actual evidence upon which the Government relied. The Government assented to the suggestion 359 and conceded the objection, and I think it would be better for me to follow their example.
I will therefore content myself with merely stating what was said by the Home Secretary, who is, of course, the responsible officer, who was thoroughly familiar with all the facts of the case and whose word can be accepted. This is what my right hon. friend said:—… this was a dangerous conspiracy, primarily intended to assist the revolution of the irregulars in Ireland by supplying them with arms, which were being obtained from America and Germany and elsewhere, and by supplying them with intelligence which assisted them in their movements.…It was in the face of that grave conspiracy, which was designed to overthrow the Government of Ireland and which had its headquarters in England, that the Home Secretary and the Government felt it their duty to act. And they acted in the manner which has been described.
I do not doubt that all your Lordships will agree with me when I say that the Home Secretary could not remain passive in the face of a state of things such as he described to the House of Commons. He had the courage to act, and he acted with success. He was able by his action to stamp out, or to be the principal cause of stamping out, the conspiracy. He said:As the Free State anticipated, the crisis had come at the time of the internment of these men, and the arrests enabled the Free State Government to turn the tide and recover ascendancy in Ireland. Things turned out exactly as they anticipated. I have since had evidence that the action taken put an end to the irregulars' activity both here and in Ireland.It was a courageous action, and a successful action. It stopped the conspiracy. The Government have no doubt that the effect of the action was to stamp out what would have been perhaps the most formidable of all the formidable chapters in the history of that unhappy country. I do not know that there is any need therefore to apologise for the action of my right hon. friend. He was placed in a position of very grave difficulty. He had a very responsible decision to take, and he took it.
I feel that we may come to your Lordships, as we have been to another House, with absolute, confidence that you will agree that he and those who acted under his orders should be indemnified for their 360 actions. The Bill carries out that intention. It is an Indemnity Bill confined to acts carried out before its passing, supplemented by compensation, which is payable not only to the persons who have themselves suffered, but, in cases where it is required, to their personal representatives. Special tribunals are set up which will have all the powers of a court of law, and will be empowered to award the compensation upon the same scale as it would have been awarded had these persons had recourse to their ordinary remedies at law. It is a pure indemnity Bill. I dwell upon that because the noble Viscount the Leader of the Opposition said upon a previous occasion that if a Bill of indemnity to indemnify the Home Secretary for this particular act came before your Lordships' House, so far as he personally was concerned he should give it support and offer no opposition to it. But he prescribed that it must be purely a Bill of indemnity for this particular action, that it should relate solely to the past, and that it should not prejudice the future. I believe the Bill as it now stands fully covers all the conditions which the noble Viscount laid down. It is a pure Bill of indemnity, and does not in any way so beyond indemnification in respect of these particular acts in the past without prejudicing the future.
If it be asked why we have selected special tribunals to award the compensation rather than leave those who have suffered to their ordinary remedy at law, the answer is that our plan is better because it is more economical, and because, if claimants had recourse to the ordinary courts, there would be different scales of compensation according to the different temperament of each court, and therefore there would be a good deal of friction and misunderstanding afterwards.
I do not think I need say any more about the Bill. It is a simple measure, and is as I have described it. But what of the future? The Government have undertaken that all these exceptional provisions shall be carefully looked into by a small expert Committee, so that they may consider what amendments ought to be introduced, and how far the Regulations should be cancelled. We take this course because we are most anxious to carry out the spirit of the speech of the noble Viscount the Leader of the Opposition. Your Lordships may 361 remember that at the end of his speech he suggested that there should be a special Resolution passed by the House reaffirming the fundamental constitutional doctrine under which no subject of the King can be imprisoned except by due process of law. We have no objection to such a Resolution. If the noble Viscount returns to it, and desires that we should accept it formally in your Lordships' House, he will incur no opposition from the Government or from this side of the House.
It would be, as I said on a former occasion, a strange matter if it should be found that a Conservative Government wanted to vary our great traditions. We value as much as does the noble Viscount those fundamental principles under which the liberty of the subject is secured, and we should be very glad to co-operate with him in any way he thinks best in order to place that upon record. All I would say in conclusion is this. Notwithstanding our adherence to these great principles, there is another principle perhaps almost as great—namely, the necessity for having full confidence in the courage of our public men. Unless we could rely upon our Ministers at critical moments to use boldly the authority could rely upon our Ministers at critical some risks in doing so, in order to assert the authority of the law, the maintenance of our institutions in this country would be in a bad way. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Marquess of Salisbury.)
§ VISCOUNT GREY OF FALLGDON
My Lords, the noble Marquess opposite, in moving the Second Reading of this Bill, has gone in some detail into an explanation of how the Home Secretary came to take the action which the Appeal Court has decided he was not competent to take. There was much force in that explanation. I think there is also force in the words with which the noble Marquess concluded, in which he reminded us that the public servants of the State may at times be placed in positions of great difficulty. In times of emergency they may have to take the risk of making mistakes, and if in all good faith they do make a mistake after taking all proper legal advice as to what powers they have, it is only right that Parliament should recognise the difficulties and peculiar circumstances 362 of the situation. If convinced that the mistake has been made in good faith and after taking all reasonable precautions to make sure that there were constitutional powers for the action taken, Parliament should pass an indemnity, should it prove that the officer of State by his mistake has rendered himself liable to severe penalty.
I also hold to what I said before the Bill was introduced, that if in these circumstances an Indemnity Bill was brought forward, and it was purely an Indemnity Bill, so far as I was personally concerned I should be prepared to support it. I recognise that the Bill, as it now stands, does fulfil the condition which I stipulated then, and I shall, therefore, give my support to the Second Reading. I do not want to dwell at any length on what happened in another place. The Bill a" it comes before us to-day is different from the Bill as first introduced in another place, I do not wish to comment on the difference between the original draft and the Bill as it now stands. I would only ask your Lordships to observe that the Bill was considerably altered in another place and that it is a good illustration of the satisfactory working of Government and Opposition under the Constitution.
It is true that carrying on government by a Government and an Opposition often has its inconveniences, sometimes its abuses, but it is really an essential part of the good working of democratic representative Government that there should be an Opposition taking the part in discussion which it is the duty of an Opposition to take and which but for an Opposition could not be taken. The good working of democratic representative government really depends on both Government and Opposition being conducted in a reasonable and sensible manner, each from its own point of view, and when a Bill comes before us which really is the result of reasoned discussion in this House or in another place we ought to take note of it as an instance of the good working of our Parliamentary system with a Government on the one side and an Opposition on the other. Whilst the Bill has, as I have said, been changed from the first draft the amendments have been accepted by the Government as the result of reasoned argument, not as amendments which were contrary to their 363 intention but as amendments which, whether they thought them actually necessary or not, they regarded not as contrary to their intentions but as calculated to make their intentions clearer. In that spirit I propose to support the Second Heading of the Bill.
Now I pass to the Resolution which I have placed on the Paper and to which the noble Marquess has referred. That Resolution "affirms the long established principle of the Constitution that the Executive should not without the previous and special authority of Parliament exercise the power of arrest without bringing to trial by due process of law." I should like to express my appreciation for his readiness to accept that Resolution as it stands. Though I do not wish to dwell any more upon the particular circumstances in consequence of which we are asked to pass a Bill of Indemnity I would observe that the action for which we are now being asked to pass an indemnity was one which, though it may be only technically, did infringe a great constitutional principle closely affecting the liberty of the subject. I will not discuss now what were the particular circumstances in Ireland which made the Home Secretary and the Government consider that such action was absolutely necessary, but now that we have parted with responsibility for the government of Ireland it would be more than ever unfortunate if we were driven into taking unconstitutional action in Great Britain.
While the British Government was responsible for the government of Ireland it frequently had practically to suspend the Constitution and pass special legislation suspending provisions of the Constitution of this country. It was done by Governments of both Parties when in positions of great responsibility, by Liberal as well as by Conservative Governments. It was always disagreeable, but it was forced upon various Governments by the exceeding difficulty of carrying on the Executive in Ireland. As to what may be necessary in Ireland now, I have nothing to say. That is the responsibility of the Government of the Irish Free State and the Government of the Northern part of Ireland. But really it would be a paradox if, after having divested ourselves of responsibility for the government of Ireland—one of the 364 most disagreeable features of which was that we were often driven to take exceptional measures for enforcing the law—we should be so infected by the state of things which unhappily exists in Ireland to-day that we should feel it necessary to suspend any part of the Constitution in Great Britain. We ought not to allow the state of things in Ireland to force upon us in Great Britain unconstitutional action which we always regretted when we had to undertake it in the ease of Ireland and which we should be most reluctant to take in this country except on occasions of real crisis and emergency.
I will not pursue that matter further until the Government have investigated, through their expert Committee, what the actual powers are under the existing law. That would be a more suitable time to discuss what the existing special legislation amounts to or what it should be, but I do think that in passing this Indemnity Bill it would really be a good opportunity for your Lordships to affirm the general principle expressed in the words that I placed on the Order Paper some time ago. It would not be right to suggest that those words should be incorporated in the Motion for the Second Reading of this Bill because it has been impossible to give your Lordships notice, but I understand that in accordance with the Rules of the House it can be done on the Motion for the Third Reading, so that it might go forth to the world that your Lordships' House, in passing this Indemnity Bill, has also affirmed the principle of constitutional liberty which has for so long been a practice and tradition of this country.
After all, we live in times when many things which the generation before us, and, indeed, we ourselves only a few years ago, regarded as absolutely settled are questioned, if not in this country in other countries, in a way in which they have not been questioned for a long time. I hold that there are certain moral principles and certain political principles by which peoples ought to stand more firmly than ever in unsettled times. One of those principles in this country has been that of constitutional liberty. It was asserted originally against the Sovereign. I think that to uphold the principle of individual liberty is as necessary now as it ever was. In previous times when it has been 365 threatened it has seemed to be threatened mainly by reactionary forces. In these days—I am thinking not of this country but of some other parts of Europe—it seems to me that the greatest danger to individual liberty has arisen not from reactionary forces but from revolutionary forces. But from whatever quarter it is likely to arise, I think it is desirable, when opportunity offers, that this principle should be affirmed as being as strongly rooted in our convictions and our affections as it has ever been.
Upon what does liberty depend? I do not pretend to give an exhaustive definition, but I should say that it depends on this: (1), That laws should be passed by a democratic representative Parliament; (2), that when passed they should be administered by competent, impartial and independent Courts; (3), that the Executive should have no power to arrest without bringing to trial before those independent and impartial tribunals; and (4), of course, that the Executive should enforce firmly and impartially laws so passed and so administered. I believe those four things to be necessary to individual liberty. Now that we are passing this Indemnity Bill I think it is a great opportunity to assert and to affirm the principle that unless Parliament specially authorises the Executive to do so in a state of crisis and emergency the Executive has no power to arrest without bringing to trial by due process of law.
The Indemnity Bill is designed to protect officers of State who have acted in good faith, and after taking the natural and proper legal advice, from those penalties which would justly be exacted from officers of State if they had deliberately or by culpable negligence violated the Constitution. The noble Marquess made it quite clear, and I do not wish to detract from the force of his statement, that in this case the action was taken after proper legal advice, in particular circumstances and in good faith. I cannot but feel that if in passing this Indemnity Bill we were at the same time to pass an affirmation of the general principle of constitutional liberty, the value of which has been demonstrated by such long practice and which has behind it such honourable tradition, to affirm the principle without which individual liberty in this country would not be secure, indeed, would not exist—that individual 366 liberty of which for so many generations we have been proud at home and for which we have had for so many generations such good fame amongst our neighbours in Europe—passing this Indemnity Bill, as I am sure your Lordships will, with good will and ungrudgingly, but coupling with it an affirmation of that general principle—I cannot but feel that such a course would be consonant with the dignity, the traditions and the reputation of your Lordships' House.
§ VISCOUNT HALDANE
My Lords, my noble friend has said something so important, something with which I so entirely concur, that I wish as one who really has cared about the Constitution of this country and its legal history to say a few words of the same kind. To the Bill itself I do not wish to call your Lordships' attention at any length. It is a Bill which, as my noble friend has just said, is very different from what it was in its inception. As first introduced it was simply a blotting out of the consequences of proceedings which had been declared to be illegal. As my noble friend has pointed out the value of a really homogeneous Opposition—as it was on this occasion—was shown in the fact that very great restriction has been introduced into the scope of the Bill, which has been put into a form which is, I think, a proper one.
But the Bill obviously bears the marks of haste. The persons who drew up the latter half of the first clause were Members of Parliament and not skilled draftsmen working in the silence of meditation. I observe that they said that the principles upon which compensation could be assessed are to be the principles upon which "damages would be assessed at common law in a common law action for trespass. "Our Common Law, by a peculiarity which is its own and does not exist in other countries, gives no damages to a person who has been injured and has died. That is intended to be put right by inserting the reference to the personal representative, but then comes back the references to the English Common Law as the measure of their right, and it will be for the Judges to decide, when any such case arises—as very likely it may not— whether any compensation should be given at all. I pass that by, merely drawing attention to it as an illustration of 367 the mischief that ensues when things are done in a hurry in the drafting of very delicate legislation.
It is not in relation to any technicality of the law that I wish to say a few words about the Bill. The Court of Appeal, acting under the provisions of the Habeas Corpus Act, declared that those persons with whom the Bill is concerned have been illegally detained and restrained of their liberty. The Court of Appeal, taking the view which they took, were only performing a duty—a duty of a more limited character than is generally supposed. I wish to say that, speaking for myself, I think the country ought to be deeply grateful to the Judges of the Court of Appeal for taking the stand which they took. It is not always that Judges, even English Judges, have done that, and it is a good thing when such an event happens, because it shows that in this country we do preserve, and esteem highly, the traditions which guarantee us our liberty. Liberties are not guaranteed in other countries as they are here. They are not guaranteed on the Continent in the same way. There it requires affirmative principles to give people their liberties. Here they have grown up with the law.
Magna Charta declared that nobody was to be restrained of his liberty except by due process of law. That was repeated, although it was sometimes challenged, and in the reigns of the Stuarts it was challenged very severely. In the reign of James I the Executive began to interfere with people's liberties. These things happen usually after war. In the present instance the interference by the Executive with the liberties of the people was the outcome of war conditions. It could not have taken place at any other time. The Home Secretary would have had to go to Parliament and get a Bill. But in the time of James I the Executive went very far, and at last there was a conflict, which after a time landed the country in the great Act called the Bill of Bights, which again guaranteed the people their liberties, unless a duly appointed Court of Justice interfered with them. Then it was thought that the liberty of the subject was safe. Lord Chancellor Bacon, I believe, laid it down that the Judges in looking at the prerogative and in looking at the right of the Executive to 368 interfere with liberty had to be lions, no doubt, but lions couchant under the Throne. For that he was called in question by Sir Edward Coke, and a great struggle took place which ended in the rout of the views of Lord Chancellor Bacon.
Then we came at last to the passing of what has landed things into a different position, namely, the Habeas Corpus Act. The Habeas Corpus Act was merely to give effect to the principle that nobody ought to be restrained of his liberty except by the jurisdiction of the Judges. The result has been that it is put in such an extreme form that anybody interfered with has a right to go to any Judge, and, if he can get an opinion from that Judge that he has been unduly restrained of his liberty, that opinion must prevail. There is no appeal from it. Very curious things happen. I remember, when I was Lord Chancellor, that somebody came and said he was being restrained of his liberty, and he claimed to make a motion before me, within the precincts of this House, calling upon me to declare that he was being restrained of his liberty without due process of law. He might have gone to any other of the Judges, who were much more familiar with these processes of law, and that was the view no doubt of the officials of this House, but my conservative instincts led me to look up the Act of Charles II, and there I found, as I had believed to be the case, that I was made personally liable to a penalty of £500 if I refused to listen to the application. I gave judgment against the man, and he went to other Judges.
I do not know whether he persuaded any Judge of the King's Bench Division to give judgment in his favour, but I mention the case in order to show that the right to go for a habeas corpus is a right which lies deep in our Constitution, and that any Judge, without appeal, may declare that a person is being unduly restricted of his liberty. That is rather important from the point of view of the Government, because it takes the edge off the decision against them. It was not an appealable matter, and the decision even of the humblest Judge was sufficient to release the principal, and obviously the Court of Appeal were in as good a position as any other. The Habeas Corpus Acts remain, and they are an expression of moral as well as legal 369 principle. It is inherent in our Constitution that liberty is at the foundation of the existence of the British citizen, and it is not to be taken away except by due process of law. In time of war it may be necessary for the Executive to interfere with liberty, but it must only do so with the full approval of Parliament, and in solemn fashion. I think that here the Home Secretary was placed in a very difficult position—he had a dangerous conspiracy to get rid of—but when the noble Marquess spoke of him as having acted as a strong man, as no doubt he did, I recalled that appeals to Ministers to act strongly used to be made in the time of the Stuarts, until the nation put an end to the matter in the Habeas Corpus Acts.
Still the situation is a very difficult one. I think it was right that action should have been taken that was taken, and, more than that, with reference to the question of law, I think probably it was quite a difficult question and one on which it was very easy to go wrong, because, after all, as I have shown, the answer to it depended only upon some individual Judge. It might have depended upon a junior Judge of the King's Bench Division, for instance, and there would have been no appeal. In that state of things this Bill is brought in, and in its present form I think it is a good Bill, and a right Bill. I think you ought to prevent actions being brought because of what is very much a technical matter. It must not be forgotten that every one of these persons arrested may be tried again under the Common Law of this country. They may be brought up under various Statutes and imprisoned, and it may be that if they come to sue for damages under this Bill the jury may give very little, because they may say: "You have since been convicted, and it has been shown that you suffered very little indeed to your reputation or liberty. "I am not, however, speculating what the result may be.
Speaking for myself, and subject to the question of doubt about the drafting of the second portion of the first clause, I think that the result has been sufficiently valuable to justify us in taking the step we are asked to take, and I agree with Viscount Grey in his desire to put on record once more the insistence of the principle which began with Magna Charta, 370 was repeated in the Bill of Rights, and repeated over and over again in various Habeas Corpus Acts, and to-day is at least as strongly embodied in our Constitution as it ever was, namely, that the question of liberty is something which is not to be disputed except by persons appointed for the guarding of it.
§ VISCOUNT LONG OF WRAXALL
My Lords, I ask leave to say a word or two on this subject because I am one of the members of this House who have been charged with the difficult and painful task of administering the law in Ireland and trying to deal successfully with the peculiar difficulties which arise in connection with the administration of law in that part of the country. I imagine that every member of your Lordships' House and, indeed, the great majority, if not all, the people in this country-would find themselves in entire agreement with the speech made by the noble Viscount, Lord Grey. In that speech he announced his intention of giving his support to the Bill. That announcement was in conformity with all the public and private conduct of the noble Viscount, and none of us doubted that that would be his decision when he saw what the Bill was. But the noble Viscount's speech cannot, unfortunately, be made a part of the Bill, and when he concluded his remarks by suggesting that the Resolution which he has placed on the Paper should be added to the Bill, I could not help asking myself whether that course is really desirable. My object in rising is to ask His Majesty's Government to consider the question from this special point of view. And, even though the noble Viscount may not agree with me, I am sure he will not question the propriety of my raising this particular aspect of the matter.
I am one of those who believe that the Government were right in the action that they took. The noble Marquess who introduced this Bill has told us—and, I believe, without any exaggeration—that the action of the Government put an end to an extremely dangerous conspiracy; indeed, he described it as one of the gravest risks which we have run in connection with the government of Ireland. The noble Viscount expressed the hope—even more than the hope—which I, for one, cordially share, that now that we have ceased to be responsible for the 371 direct government of Southern Ireland we shall not again be called upon to perform those acts of government which, as he very truly said, had to be performed by Ministries of both sides, were always performed with regret, and were always distasteful to those who had to perform them—Coercion Acts of all kinds, imprisonment without trial, and so on. The history of Ireland is a long and sad one, and I think it is almost too much to hope that, even though we have parted with our direct responsibility, we shall not occasionally be faced with grave and critical situations, calling for prompt and courageous action.
I recognise that the incorporation of the Resolution of the noble Viscount in the Bill will not in any way weaken the hands of any Government in the future; but I would point to this significant fact. The noble Viscount made it perfectly clear that he did not care to stop to inquire into the changes that had been made in the Bill in another place, or into the reasons why those changes were made; and indeed, with his usual broad-mindedness and generosity, he went even further, and made it clear that he held that those changes were in conformity with the principle of the Bill, and were only giving real effect to that which the Government desired. That, however, is very different from the tone and temper which have been adopted outside this House since the Bill passed through the House of Commons. The statement has been freely made that the Bill has been changed beyond recognition, and that the Amendments introduced into it have entirely altered it. For my part, I agree with the noble Viscount that the changes made have been the result of the normal, healthy and proper action of Parliament, the result of an Opposition criticising the Government and of the Government realising that, however carefully they have drawn their Bill, it does not meet all the demands that it is intended to meet, and therefore accepting Amendments, or moving them themselves as the outcome of discussion, which have the effect of materially altering the measure. That is what happened in this case, and, so far from affording an opportunity for criticism or attack upon the Government, it redounds to the credit of the Government as well as of the Opposition, because it shows, as the noble Viscount says, that while there has been 372 vigour in the Opposition there has also been strength and good will in the Government.
What I am extremely anxious about is that nothing should be done to give any support to the suggestion, which has been made in your Lordships' House as well as outside, that the action of the Government was wrong in the first instance, and ought not to have been taken. The conflict between the Government of the day and criminal action is difficult enough in this part of the Kingdom, but it is ten times more difficult when anything connected with Ireland is concerned. In this case the Government, no doubt, had the best advice, and it turned out that they were wrong, but I believe, nay, I know, that their action was courageous. I believe it was in the best interests of good government, and I hope that nothing will be said, and nothing done, to create the smallest doubt that the Government acted rightly and wisely, and that this Indemnity Bill is a proper measure to relieve the Ministers and officials concerned from any risk that they may have incurred. I believe that to be the view of the great majority of the people of this country.
If His Majesty's Government, after consideration, are satisfied that the incorporation of the noble Viscount's Resolution in the Bill—I suppose as a Preamble: I do not quite know how else it could be incorporated in the Bill—but, whether as a Preamble or as a special clause, if the Government are satisfied that this can be done without running any risk of casting discredit upon their action, I should be the last person to oppose it. The opinions expressed in the Resolution are shared by all of us, both inside and outside your Lordships' House. It is a Resolution that we should all of us affirm without question, if it stood by itself, but whether it is right to incorporate it in the Bill is another matter. I rose, therefore, to ask the Government to consider this aspect of the question, because I attach immense importance to making the Government realise that in their original action they had behind them the great bulk of public opinion in the belief that they acted with the courage and determination with which we like to see His Majesty's Government acting.
THE MARQUESS OUEZON OF KEDLESTON
My Lords, I do not propose to say anything upon the Bill itself upon which there appears to be a general consensus of opinion in your Lordships' House. I rise only to remove a misapprehension under which the noble Viscount who has just addressed your Lordships appears to labour. More than once in his vigorous speech he has suggested that His Majesty's Government proposed to add to, or to incorporate in, the Bill the Resolution of which the noble Viscount the Leader of the Opposition gave notice. And my noble friend sitting behind me wonders whether that action, if it were taken by us, would take the form of introducing these words in the form of a Preamble to the Bill. That is not at all the ease. It is not the intention of the noble Viscount opposite, as I understand, and it certainly would not be an action of which I should personally be in favour.
Let the House remember how this matter has arisen. When we discussed this case before, the noble Viscount was very anxious to introduce an Amendment of the Resolution or the Motion that was down upon the Paper and to ask your Lordships to accept an affirmation of the general principle to which he attached, and rightly attached, so much importance. I deprecated his doing so at the moment because I thought that the Amendment proposed by him without notice was hardly in accordance with our ordinary procedure, and because I thought that it ought to be made the subject of special notice and special discussion at a later date. The noble Viscount very kindly-yielded to my reasoning and put his Motion upon the Paper. There it has rested ever since, and the noble Viscount is, no doubt, waiting for an opportunity to bring it again before your Lordships.
Now, such an opportunity, and the most natural and obvious opportunity, is clearly afforded by the introduction of this Bill. Accordingly, the noble Viscount consulted me earlier in the day as to whether it would be possible in connection with this discussion to bring before your Lordships once again the Motion of which he has given notice. That seemed to me and to those whom I consulted to be quite a reasonable proposition. In the first place, with the definition of constitutional liberty as laid down by the noble Viscount in his speech this afternoon, I believe we shall all be 374 in agreement. The actual phraseology which he selected I accept. As to the desirability of placing that affirmation so defined upon the Resolutions and decisions of your Lordships' House, I am, again, in agreement. I think it is entirely right that your Lordships should not forfeit this opportunity of re-affirming this great fundamental principle of the British Constitution.
Very well then; there only remains the question of how this can be done, and here we have been in consultation with those authorities who sit at this Table and who advise us as to the best method in which to proceed. We gathered from them that it would be quite in order, and that no unusual practice would be adopted with regard to the Bill itself, if upon the Third Beading of the Bill the noble Viscount—having in the meantime given notice, as he did this afternoon, of his intention so to act and having acquainted noble Lords with what was going to be done on Wednesday—asked your Lordships' House to include in the Motion for the Third Beading the words of his Resolution. That is all that it is proposed should be done. No addition will be made to the Bill. No incorporation of these words in the Bill will take place. When the Motion for the Third Reading is put, the noble Viscount, in a manner with which we are quite familiar, will ask the House to include in that Motion for the Third Reading the affirmation of the principle which he defined this afternoon.
§ VISCOUNT GREY OF FALLODON
My Lords, that was entirely my view of the use that might be made of the opportunity which the Bill provides, not to have these words incorporated in the Bill but to pass them as a Resolution of your Lordships' House when your Lordships are parting with the Bill. What I imagine would take place is this. The Question would be put: "That the Bill be now read a third time," and I would then move these words as an addition to that particular Motion.
§ VISCOUNT GREY OF FALLODON
If that be the case, I think that all that need take place on the Third Reading on Wednesday as not that there should be any further debate or discussion, 375 unless the House desires it, but that I should move these words formally after what has fallen from noble Marquesses opposite and after what I have said this afternoon. If the Government accepted them, they would stand as a Resolution of your Lordships' House in parting with the Bill.
§ LORD PARMOOR
My Lords, I do not rise in any sense to oppose this Indemnity Bill. I think it is absolutely necessary. I would go a little further and say that I think in its present form it is an Indemnity Bill which is properly drafted in almost every respect. There are, however, one or two words that I wish to address to your Lordships, having in mind entirely the position of the deportees. I have no doubt that the Home Secretary ought to be indemnified. I have no doubt the same may be said, though it is not exactly an indemnification, of the Attorney-General, and I do not think that any blame whatever is to be cast on anyone in connection with what has been done under the Restoration of Order in Ireland Act, 1920, and Regulation 14B.
But we are dealing with a very critical question in regard to our freedom and liberty in this country. We have to bear in mind what was done in this matter. We have to bear in mind that, without trial and without knowing the nature of the accusation made against them, these deportees, to the number of about 110, were taken from their beds and from their homes, and, without any further explanation, deported to what for this purpose is the same as a foreign country—namely, to Ireland. There is certainly one consideration which I think ought to be remembered. I have suggested to your Lordships' House more than once that instead of proceeding under this special Order our ordinary criminal law would have been quite sufficient to deal with all the difficulties to which reference has been made. I feel that very strongly now, and the more that the gravity of the conspiracy is referred to the more strongly do I feel that our Statute and Common Law in relation to criminal matters is and ought to have been sufficient to deal with all these difficulties.
Some of these cases must be very slight. I called your Lordships' attention to the Manchester case on a former occasion, and I have seen it 376 stated since then that the person concerned had been charged before a Manchester police magistrate and discharged. Nothing was said against him. But after all, that man had been taken out of his home and away from his business and had spent eight weeks in Mountjoy Prison. In Birmingham there were two cases. Your Lordships will recollect that in one case the man concerned was fined £5 and in another case ho was discharged. It seems somewhat monstrous that such men should have been subjected to deportation and imprisonment on principles which are admitted to be in absolute contradiction to the whole principle of the criminal law of this country, and not only of this country, but really of most civilised countries. I should like to add one word before the noble Viscount, Lord Long, leaves the House.
§ LORD PARMOOR
The noble Viscount travelled, I think, a little bit outside the Bill itself in order to express the opinion in reference to criminal actions, and particularly in regard to Irish conditions, that powers of this kind could be properly justified. I think, if I understood him, he went a little further and said that he hoped that powers of this kind would be put into operation—of course, I am presuming that the Legislature has sanctioned them—where we have difficult conditions in regard to criminal acts such as the criminal conspiracy in this case. I wish to protest with all my power against a view of that kind.
§ VISCOUNT LONG OF WRAXALL
I did not say that, but I do not want to stop the noble and learned Lord from protesting.
§ LORD PARMOOR
I should be extremely sorry to attribute to the noble Viscount anything he did not say either in words or in spirit. I would much rather he would correct me if he thinks I have gone too far. I took down the words myself that as regards criminal action—that was the phrase he used—particularly in reference to conspiracies against order—I presume conspiracies of this character—the noble Viscount 377 thought that powers of this kind were powers which might he given to the executive authority.
§ VISCOUNT LONG OF WRAXALL
No, I do not think the noble and learned Lord took down any words of that kind from me. The object of my remarks was to express the hope that nothing would be done to lessen the courage and determination of the Government in dealing with this very difficult crisis.
§ LORD PARMOOR
I apologise to the noble Viscount if that is what he said. Everyone desires, of course, that matters of this kind should be handled with courage and determination. But I feel strongly that they ought to be handled with courage and determination within the ordinary area and sphere of our national ideas regarding criminal matters. So far from any procedure of this nature being an advantage, I regard it as wholly disadvantageous. I think that action of this kind tends to raise the very difficulties which it is designed to meet. Directly you put into operation a view of criminal procedure which is out of accord with our national practice and our national ideas you get all the friction and trouble which undoubtedly has been aroused in the case of these particular deportations under Regulation 14B. It is a serious matter to attack individual liberty, and to deport without trial—and without giving any intimation to the person as to what the charge is—to what is for this purpose a foreign country. I recollect that on a former occasion something was said by the noble Viscount regarding the Dominions, but in this respect there is no difference between a Dominion and a foreign country, and I am certain that if we were to claim that the citizens of the Dominions should, in certain circumstances, be deported here without trial we should raise a question that the noble Viscount would regard as extremely serious.
There are one or two points in regard to which I want to call the attention of the Government. They concern the form of the. Bill as it now comes before us. I am sorry that I did not hear the speech of the noble Marquess. There was a discussion in the other place in regard to the introduction of the words "in good faith." Clause 1 says that 378No action or other legal proceeding whatsoever, whether civil or criminal, shall he instituted in any Court of Law against any person.I say the words ought to be "any person who has acted in good faith. "Mr. Asquith pointed out in the other place that there had been uniform precedents in favour of the incorporation of these words. I want to go a little further than to deal with precedent. Surely the whole idea of an indemnity Bill is to give an indemnity to the officials and others who have, in fact, acted in good faith. It cannot be desired to give any indemnity to a person who has acted maliciously or wrongly. So far as the Home Secretary and the head officials are concerned it is not likely to be suggested that they acted otherwise than in good faith. I certainly would not suggest that, and I do not think anyone could suggest it for a moment.
But there are a large number of officials other than men of this stamp and character by whom proceedings of this kind are carried out, and it is being alleged—I do not want to say whether rightly or wrongly—that in some respects malicious injury was done, that in some cases even property was taken away which belonged to deportees, and also that information of a malicious character may have been given on which persons were wrongly deported. The only answer that was given in the other place against putting in the words" in good faith "was that it would be open to anyone to commence proceedings in the ordinary course by a mere allegation of bad faith. That, I think, is a real argument against the words that I ask should be incorporated, but I think the answer to that objection is complete. First of all, people would not be so unreasonable as to raise suggestions of that kind merely for the purpose of having to pay heavy costs, because, of course, they could not succeed. Secondly, quite apart from this Bill, supposing in connection with Regulation 14B anyone had acted maliciously he undoubtedly would have been liable to criminal proceedings, or rather to criminal proceedings in some cases and to civil proceedings in others. I do not think an indemnity Bill ought to go to the extent of protecting anyone who has not acted in a perfectly bona fide manner.
That is a real distinction which we ought to keep in mind in passing an 379 indemnity Bill. I certainly hope that the plea—I cannot put it in stronger terms—which Mr. Asquith made in the other House will have the consideration of His Majesty's Government in order that these words, which are common form in indemnity Bills, should be incorporated in the present Bill. It is not necessary to dwell at any length upon matters of this kind. I should have thought that they would have been recognised at once. No member of the Legislature would desire to give an indemnity for a person who ha" acted in a bad or malicious way. I notice that the Attorney-General, in another place, said that you might bring an independent action for matters of this kind. I do not think you could in the face of the words in the Bill, and if you could I think it would be a very bad precedent to promote any form of indemnity Bill in which you might bring some of your actions under the terms of the indemnity Bill and some of them on other considerations altogether.
My suggestions are not meant, of course, to interfere with the main purpose of the Bill. It was asked in the other place—and I read through the proposal "very carefully in order to see what weight they appeared to have—that damage payable to the deportees should not only be for any act done "for the purpose of carrying such Order into effect," but also for any act done" in the course of carrying such Order into effect." The noble Marquess will see at page 2, line 7, the words "for the purpose of carrying such Order into effect. "I want the words to read" for the purpose of or in the course of carrying such Order into effect." I desire that there should be no doubt about this. I observe that there was a doubt amongst the legal authorities in the other place. Supposing in the course of deportation, or in the course of his treatment under the Deportation Order, a deportee has suffered damage, surely he ought to be indemnified in respect of that damage. There were two views in the other House. I frankly admit that some members thought the words I suggest were unnecessary because the deportee would get damage under the words as they now stand. Others took a different view, and thought the deportees would not get damage for anything done "in the course 380 of the proceedings "unless the words which I suggest were introduced. I do not wish to be involved in a legal discussion, but I want to put the matter on this ground. Do the Government intend that a deportee should be compensated for damages incurred "in the course of" these deportation proceedings? That is the point. If so, will they not make that clear upon the face of the Bill?
There is one other matter which, though hardly a subject for amendment, is one on which one or two words should be said. The Bill says—the amount of such compensation shall be assessed on the principles on which damages would be assessed at common law in a common law action for trespass—.It really is impossible to arrive at that result if you take away the jury system. The damage is really what the jury cares to assess the damage to be. There are what are called "exemplary damages." and there is an old case, perhaps an extravagant case, where a man who had been detained under false imprisonment for six hours and had been regaled with beef steaks and beer during the time, was awarded £300 damages by a jury. The question was raised whether he could have the £300 or not. The jury said "Yes," because in matters of this kind, and the preservation of our liberties, it has always been allowed and admitted that exemplary damages could be assessed.
The individual really gets compensation for the deprivation of those constitutional rights which as an English citizen he is entitled to enjoy. I hope it will be made clear in substituting the new court for the jury that there is not to be any idea that the deportee is only to have the pounds shillings and pence which he can say he has absolutely incurred as a matter of loss, but that a wider view will be taken: the view which would have been taken if these matters had been settled by a jury. The mere fact of having been a deportee may be a great loss. The man may be perfectly innocent, and the mere fact of having been suspected is, in itself, a very serious thing indeed.
Those are the only points upon which I wish to address your Lordships. On the last point I speak from the point of view that in accordance with our ancient ideas of liberty we should in full manner recognise that deportees, if innocent, are 381 entitled to full consideration in the matter of compensation, and that in any case they are entitled to the same compensation, in amount, as they would have obtained if the matter had gone before a jury. I hope this will be the last time that we shall have to deal with a Bill of this kind and that this war legislation will be swept out of the Statute Book as soon as possible as being an interference with those constitutional liberties to which every citizen of this country is entitled.
§ THE MARQUESS OF SALISBURY
My Lords, it is not necessary for me to say anything on the main course of the debate because it has been entirely of one complexion. Every noble Lord who has spoken has concurred in approving this Bill and in desiring that the Second Beading should be carried. Therefore there is nothing for me to say but to express my warm thanks to noble Lords in all parts of the House for the support they have accorded to the Bill. It would not be courteous, however, if I omitted to notice one or two remarks of the noble and learned Lord who has just spoken. I will try to satisfy him as well as I can. He pointed out that although under Regulation 14B and the Restoration of Order in Ireland Act any action which was not made in good faith would be liable to penalties, he questioned whether under this Indemnity Bill that applied. I know how difficult it is for a layman to read an Act of Parliament, and, indeed, we often pass Acts of Parliament which lawyers say mean something different from that which we intended. But I think it is pretty clear. The whole operation of this Bill is only to indemnify acts which are made in pursuance of Regulation 14B, and therefore all the exceptions which would naturally exist under that Regulation are transferred to this Indemnity Bill, and anything which would have been open to remedy because of want of good faith under Regulation 14B will similarly be open to remedy under this Indemnity Bill if it is done in ill faith. I think that point is completely covered, but if between now and the next stage I find I am wrong I will take the necessary steps.
The noble and learned Lord also wanted to know whether the words "in consequence of such deportation and internment" were wide enough and whether 382 there may not be a case for damages where wrongful acts had taken place in the course of the deportation. The whole of the proviso to Clause 1 is subject to the words" in consequence of. "Everything is covered by those words, and I should have thought you could not have a more complete phrase. Lastly, the noble and learned Lord made some observations upon the standard of compensation which might be assessed—as to how far damages might go. The Government have used words with as wide a meaning as they can find. They say compensation is to be assessed on the same principles as damages would be assessed at Common Law, with one exception. That seems to be as wide a phrase as you can use. Whatever damages could be obtained at Common Law can be obtained under this Bill.
§ LORD PARMOOR
What I pointed out was that the principle of compensation, so called, really was the jury view, and that is what they would not get under this Bill.
§ THE MARQUESS OF SALISBURY
I suppose that would be covered by the words "principles on which damages would be assessed at common law"; the damages which the jury would assess. I do not understand what other meaning can be attached to them. These points shall be looked into before the next stage, but I think my noble and learned friend, on reconsideration, will find that they are all covered by the words of the Bill.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.
§ THE MARQUESS OF SALISBURY
The Government propose, if your Lordships are willing, to take the remaining stages of the Bill on Wednesday, and we shall put down the necessary Motion to suspend the Standing Orders so that that may be done. If noble Lords wish to take some other course the Government will, of course, consider it.