§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Marquess of Salisbury.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Indemnity for action taken under Restoration of Order in Ireland Regulations.
§ 1.—(1) No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any court of law against any person for, or on account of, or in respect of the issue before the passing of this Act and since the sixth day of December, nineteen hundred and twenty-two, of any order purporting to have been made in pursuance of regulation 14 B made or purporting to have been made under the Restoration of Order in Ireland Act, 1920, or for, on account of, or in respect of any act done before the passing of this Act for the purpose of carrying any such order into effect; and if any such proceeding has been instituted, whether before or after the passing of this Act, it shall be discharged and made void, subject in the case of a proceeding instituted before the seventeenth day of May, nineteen hundred and twenty-three, to such directions as to costs as the court or a judge thereof may think fit to give:424
§ Provided that any person who, in pursuance of any such order, has been deported to Ireland since the sixth day of December, nineteen hundred and twenty-two, and therein interned or the personal representative of any such person who may have died shall be entitled within three months after the passing of this Act to claim against such person as may be designated for the purpose by the Treasury compensation for any loss or damage he may have sustained in consequence of such deportation and internment, or of any act done for the purpose of carrying such order into effect, and 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 but without regard to any statutory minimum, or in Scotland for wrongous imprisonment or assault, and awarded by a tribunal consisting of three persons (of whom one shall be a person who holds or has held high judicial office) appointed by the Lord Chief Justice of England, or, in cases of persons deported from Scotland, by the Lord President of the Court of Session, and the decision of such a tribunal shall be final.
§ (3) Any such tribunal shall have power to award and assess such sums by way of costs as they, in their discretion, may think fit.
§ THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY) moved, in the proviso to subsection (1), to leave out "or the personal representative of any such person who may have died." The noble Marquess said: This is a drafting Amendment to the necessity for which attention was called by the noble and learned Viscount, Lord Haldane, on the Second Reading. It refers to the heirs or personal representatives of any deported person who may have died. The words at present in the Bill are not in accordance with the provision which comes a little later in the same subsection that damages are to be assessed according to the method adopted in actions for trespass at Common Law because, apparently, such an action takes no account of the personal representative of a dead person, so that the words require to be altered.
§ I propose therefore to omit the words "or the personal representative of any such person who may have died" in order to insert at the end of the subsection these words: "If a person so deported and interned dies the claim for compensation 425 may be made or prosecuted by his personal representative and compensation may be assessed as if he had not died. "I need not, tell your Lordships that the meaning is the same as that intended by the Government in the first instance, but (he drafting is more correct.
Page 2, lines 1 and 2, leave out ("or the personal representative of any such person who may have died").—(The Marquess of Salisbury.)
§ VISCOUNT HALDANE
I called attention to this defect in the drafting on Monday. Of course, the Government intended the very thing which the Amendment covers, but the whole matter goes to show the disadvantage of redrawing Bills on the floor of the other House. I dare say it would have been as bad if we had redrawn the Bill on the floor of this House. It also shows the advantage of an Opposition looking after things.
§ On Question, Amendment agreed to.
Page 2, line 18, at end insert ("If a person so deported and interned dies the claim for compensation may be made or prosecuted by his personal representative and compensation may be assessed as if he had not died").—(The Marquess of Salisbury.)
§ On Question, Amendment agreed to.
§ THE MARQUESS OF SALISBURY moved, at the end of subsection (2), to insert: "Provided that in any proceedings on such a claim any parties shall be entitled to appear by counsel or by a solicitor or law agent." The noble Marquess said: There is no need, I think, to explain this Amendment to your Lordships as its meaning is obvious. It is designed to entitle a person claiming compensation to be represented by a counsel or solicitor when he makes his claim. This is in pursuance of a pledge given by the Attorney-General in another place.
Page 2, line 22, at end insert ("Provided that in any proceedings on such a claim any party shall be entitled to appear by counsel or by a solicitor or law agent").—(The Marquess of Salisbury.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 agreed to.426
§ House resumed, VISCOUNT HALDANE on the Woodsack.
§ THE MARQUESS OF SALISBURY
My Lords, I beg to make the Motion of which Notice has been given to suspend Standing Order No. XXXIX for the purpose of taking the remaining stages of the. Bill.
§ Moved, That Standing Order No. XXXIX be considered in order to its being dispensed with for the purpose of taking the remaining stages of the Restoration of Order in Ireland (Indemnity) Bill.—(The Marquess of Salisbury.)
§ On Question, Motion agreed to, and ordered accordingly.
§ Then, Standing Order No. XXXIX having been suspended, Amendments reported (according to Order).
§ Moved, That the Bill be now read 3a.—(The Marquess of Salisbury.)
§ VISCOUNT GREY OF FALLODON had given Notice to move, on the Motion for the Third Reading, that the following words be added to the Motion: "and that this House affirme 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. "The noble Viscount said: My Lords, after what passed on Monday I do not propose to make another speech. Indeed, I said on Monday all that I had to say in support of the words which I have put on the Paper and the Government have been good enough to say that they will accept the words as they stand. Therefore I will formally move them.
At the end of the Motion insert ("and that this House affirme 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").—(Viscount Grey of Fallodon.)
§ VISCOUNT LONG OF WRAXALL
My Lords, before the Question is put, may I say a word? I believe I am in a minority of one, but that does not make it any less incumbent upon me to state very briefly the reasons for the position I take. I confess that I am rather puzzled by the procedure which has been recommended to the House by the noble Viscount opposite and adopted by the Government. I should have thought that the words moved would be generally regarded as expressing the universal opinion not only of the House but of every constitutionally-minded, law-abiding person in the country, and therefore to add them to this Bill without, as I conceive, any special reason is unnecessary. I am, however, quite satisfied, having observed the noble Viscount very closely for a great many years, that he would not recommend to this House any course of action which was not in his judgment necessary and desirable, and therefore, probably, desirable in the opinion of the great majority of the people of this country.
It is not because I disagree with the views expressed in this House that I ask permission to say why I regret the adoption of these words at this moment. These words appear to me to be very imperative. They affirm, of course, a great constitutional principle to which, as I have said, we all subscribe and to cherish and maintain which we all do everything in our power. Therefore I should have thought that their reassertion at this moment was not necessary. The reason I regret their adoption by the House is that this Bill is the result of special and very drastic action on the part of the Government of the day. I agree—of course, everybody must who believes in the Constitution of this country—that it is most deplorable that the Government should be called upon to arrest men without trial and the words of the noble Viscount ask you to affirm that this should never be done.
What happened in the case which rendered necessary the introduction of this Bill and led to the proposal now before us? There was a great conspiracy which existed not only in Ireland but had its branches over here. The Government in Ireland believed, I have no doubt with very good reason, that grave danger to the Government of Southern Ireland would result if drastic 428 steps were not taken. We know, from a statement made in another place by the Home Secretary, that His Majesty's Government shared those views, and believed also that the danger was not confined to the stability of the Government in Ireland, but also existed in some degree here. We all remember with horror and regret, and infinite sorrow, the murder of the late Sir Henry Wilson, a most distinguished and gallant soldier and a great citizen of this Empire. That murder must have been the result of a long pre-arranged plan and deep-seated conspiracy in this country. Now, I am quite content, in this as, indeed, in anything else which I can imagine, to take the guidance and leadership of His Majesty's Government, particularly when accepting a Motion made by the noble Viscount opposite; but I do take note of the fact that at this moment there is an inclination to adopt the view that, as we have terminated the old system of government, under which we in this country were responsible for the government of Ireland, therefore we may look forward to a totally different future from the black past to which we have to look back, and that it may never be again necessary to exercise the drastic powers which Governments of all complexions have been compelled to exercise in times past.
But as I read these words they convey a distinct direction to the Government not to arrest unless they are prepared to bring to trial. I hope that circumstances such as we are all familiar with may not arise again, but at the same time I am not ashamed or afraid to state here, that, firmly though I believe in, and profoundly as I admire, the British Constitution, and strongly as I will always fight for its maintenance in every degree and in every detail, yet I hold that the first duty of the Government is to protect the lives, liberties and property of the citizens of this country. And if they have any reason to believe that a conspiracy exists, if they have evidence that convinces them, although they know perfectly well that they cannot bring that evidence into Court—that has occurred more than once in the history of Ireland—I should regret very much if the language now to be adopted by the House did anything to suggest to them that they are not to act in such circumstances of dire peril.
429 It may be that I am stupid in my interpretation of the course which your Lordships are now invited to take, but I have said what I have said because I hold these views very strongly, and because I have myself been confronted with circumstances of greatest peril, in which I was compelled, as Minister of the Crown, to take independent action. I can only say that if, to-morrow, I were called upon—and I never shall be again—to occupy an important position under Government, I should not hesitate—and I am sure the noble Viscount opposite would not hesitate—in the interests of peace and order, to arrest a man, although I knew I should not be able to bring him to trial. I hope that the circumstances may never arise again, but I consider that I should not be loyal to those brave and able men who worked under myself and other Ministers in days gone by, and up to the very last moment in our history, in dealing with these terrible circumstances in Ireland, if I did not say that I should always support any Government which took immediate action, even although in taking that action it might run some risk of breaking the greatest and most fundamental principle of the Constitution.
I am not going to offer any opposition to the Bill—of course, that would be futile—but I desire to say these words because I think they are due to those who co-operated with myself and other Ministers in the supremely difficult task of maintaining order in Ireland and protecting the lives of the people, there and here: because I do not want it to be thought that in accepting these words I make the smallest suggestion that in future, if a time of dire peril comes, Ministers should not act without fear of consequences, confident that Parliament will always indemnify them if they have done their duty in a very difficult position.
§ VIKCOUNT GREY OF FALLODON
My Lords, perhaps it is only courteous that I should make a few observations on the noble Viscount's speech. The reason why I feel that it is appropriate that your Lordships should add these words to the Motion at this moment is really based upon what the words themselves say, namely, that a Government must not exercise the power of arrest without bringing to trial unless it has" the previous and special authority of Parliament." 430 I understand the decision of the Court which has given rise to this Indemnity Bill was that the Home Secretary and the Home Office did what they did without being covered by the authority of Parliament. I will not go over what the noble Marquess said the other day, that, even if it was only a technical breach, it was at any rate a breach of the Constitution, in the sense that the action taken was not covered by the authority of Parliament. I think while we are passing an Indemnity Bill for that action, which the Courts have declared to be unconstitutional—a Bill which has been accepted unanimously by the House, and with every sign of good will—it is not inappropriate that the House should also take the opportunity of affirming that the general principle of the Constitution remains unchanged.
§ THE MARQUESS OF SALISBURY
My Lords, may I ask the leave of the HOUSE TO SAY a word for fear of misunderstanding? The Government accepted most cordially the Motion of the noble Viscount opposite, but I should be very sorry if it were thought that, in doing so, they wished to accept any condemnation upon the action of my right hon. friend the Home Secretary, or of themselves. The action which he and the Government took, and which my noble friend the Secretary for Scotland took, was taken in pursuance, as it was then thought, of the Restoration of Order in Ireland Act, and if the Government had been right in that assumption they would thus have had the special authority of Parliament to which the noble Viscount refers in his Amendment. It turned out that the action taken was illegal, but we have no reason to shrink from re-asserting that we do not pretend, any more than any other Government in England, to act without the authority of Parliament. If the Restoration of Order in Ireland Act, had meant exactly what we took it to mean we should not in any way have transgressed the principles which the noble Viscount now desires us to re-assert. In these circumstances, of course, we can have no objection whatever to his reaffirming those principles upon this occasion. On the contrary, we think, with him, that the passage of a Bill of Indemnity is a suitable occasion on which to re-affirm those fundamental principles.
§ On Question, Amendment agreed to, and Bill read 3a.
§ Moved accordingly, and, on Question, Bill passed, and returned to the Commons.