§ EARL RUSSELL had given Notice to call further attention to the recent deportations to Ireland and to the character of the reply made on behalf of the Government on April 24, and to move to resolve, That in the opinion of this 199 House there is no justification for the retention by the Executive of any powers of arrest without trial.
§ The noble Earl said: My Lords, on the last occasion when I called your attention to these very remarkable seizures of numerous person" and their deportation to the Irish Free State the legality of that action was in question and actually in issue before the Courts. I therefore did not deal with that matter. It was not really relevant to the principal point of my argument, which addressed itself not to the legality of the powers which the Government claimed to possess, or thought they possessed, but to the expediency of using such powers in times of peace. However, since I last addressed your Lordships there has been delivered a judgment of the Court of Appeal of the strongest possible character, affirming in almost every respect the illegality of the action taken by the Home Secretary in deporting these persons, and I think we can be thankful that we still possess Courts that are prepared to assert our Constitutional Law against the over-riding attempts of the Executive. And we may be the more thankful because it has been, I think, observed by constitutional lawyers that during the war, and of recent years, the Courts of the King's Bench have not been so firm as they used to be in resisting the encroachments of the Executive.
The learned Judge, Lord Justice Scrutton, in his judgment, said:—
It is quite possible, even probable, that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law.
It ought not to be, and in this House I dare say is not, worth while emphasising the propriety of exercising these powers only by due process of law. It does not depend upon the criminality of the person arrested. If there is a malefactor or a wrong-doer you can arrest him by due process of law. Of that I make no complaint, and I suppose no one, unless he be an enemy of the Free State, would make any complaint. You would only have to produce the evidence which you have against the person, and witnesses would have to be called in public, where the evidence can be sifted, and the Court, if the person is found guilty, would then have to apply to him appropriate and, no doubt, severe punishment. The question
whether these are worthy or unworthy persons is quite irrelevant. I hold no brief for them, and I know nothing about them. My objection was to these powers being exercised in times of peace, and although a decision has now been given I do not think that any apology is needed for raising the question again, because the attitude which the Government have taken is still uncertain. I have not yet succeeded in gathering what was in their mind, and I hope we may elicit some information on the point this afternoon.
One result of these proceedings in the Courts is to exhibit the Home Secretary, who is a great officer of State—the principal Secretary of State and the personal adviser of the King—in a light which it seems to me is hardly a dignified light for a Minister of the Crown. A question arose in the course of this action as to whether the Home Secretary had, or had not, the personal custody of Mr. Art O'Brien, and could produce him if called upon to do so. The Home Secretary had made a certain statement in another place, in which he said that he retained control over these people, and that they could be returned if he asked for them. Under pressure of this litigation, and apparently with a desire, which does not seem to me to be creditable to a Minister of the Crown, of winning the action not on its merits but by any side issue, the control of the Home Secretary seems to have been presented to the Courts in a very ambiguous manner.
Lord Justice Bankes says in his judgment:—
In his affidavit he states that the Governor of Mountjoy is an official of the Free State not subject to his orders.
Lord Justice Scrutton says:—
No exact evidence …. the arrangement was oral …. until further orders. Whose further orders is not stated, but the Attorney-General contended that the Home Secretary had no power to release the prisoner. The Home Secretary certainly did not say this to the House of Commons …. on this conflicting evidence all proceeding from the Home Secretary himself.
Your Lordships may remember that I pressed the noble Viscount (Lord Novar) who replied to me on the last occasion, as to whether the arrangement was oral or in writing, but it now appears that there was a mere verbal understanding between
these two gentlemen as to what was to be done with these deportees. That makes the whole action more remarkable.
Then Lord Justice Atkin said:
The Attorney-General relied upon the absence of control …. the answer of the Home Secretary refrains from stating that ho had no Control. The affidavit states that the applicant is not subject to the Home Secretary's orders… He can it he has in fact parted with control show fully how that has come about.
I confess that that does not seem to me to be a dignified position for a Minister of the Crown to occupy. Surely it would have been far more straightforward for the Home Secretary in his affidavit to have repeated what he said in the House of Commons, and to have admitted that he had power to produce the person if the Court called upon him to do so. I think that was a course which would have reflected less discredit upon his high office than a course which showed he desired if necessary to win the case upon a mere technical ground without really fighting it upon the merits.
A good deal was said—and, I think your Lordships would be inclined to agree, justifiably said—on the procedure by Order in Council on which all this rested. The Order under which the action was taken was thus described—and quite correctly described—by the learned Judge. Lord Justice Bankes:—
The Order deprives the Executive of this country of that full and uncontrolled right to direct the release of the interned prisoner which, in my opinion, is a necessary incident of a valid Order.
And he also said:—
The Regulation confers on a branch of the Executive in England certain absolute powers, among them the absolute power of interning prisoners without trial and without informing them of the details of the charge made against them or of the evidence on which it is made and for an unlimited period.
What I desire to do this afternoon is to protest against powers of that autocratic character being in the possession of any Government in this constitutionally governed country in time of peace.
And, seeing the importance of these Orders and their far-reaching effect, one would have thought, at least, that great care would have been taken in drawing them up, that every possible precaution would have been taken to see that the Orders were clear, and were only such as
were necessary, and were not capable of misunderstanding. But Lord Justice Scrutton said—and this is what the Judges thought necessary to say in a judgment against the Crown—
There appears to have been no careful consideration of each of these Regulations where concerned with the restoration of order ill Ireland. … It is difficult to understand why it was desirable for the restoration of order in Ireland to regulate the cultivation of hops in England, keeping of pigs in England, or English season tickets. … Why these Regulations were ever enacted in this lazy and unintelligent way I do not understand.
That does seem to me to present rather a serious ease against the Government, not only for using autocratic powers, but for not even troubling to make their Regulations upon the subject perfectly clear and intelligible.
There is one other point to which I think attention should be called, and that is that two Regulations were made, in the hope apparently of putting the Government upon a better footing while the ease was, so to speak, in progress and sub judice. This is what Lord Justice Bankes said about them:—
The two Orders in Council were both made after the internment of the applicant. The last Order is remarkable not only because of the date at which it is issued but also because of what it purports to do.
Then he went on to discuss technical reasons, with which I need not trouble your Lordships, why the Order, which was made apparently in the hope of assisting the Government's case, failed in law to do so. He also said in general that the practice of legislation by means of Orders in Council is one which leads to inconveniences, difficulties, and dangers. Laws, he said, are made the principle of which has never been subjected to criticism in Parliament. And I think I am right in saying that another Judge commented upon the difficulty of a Court trying any case if the Government is to pass new legislation during the progress of the case, in the hope of putting it in a better position to win the case.
All these things seem to me to have resulted in a situation which has not placed His Majesty's Government in a particularly favourable or a particularly creditable light, and I hope they are not now so proud of the action they took as they appeared to be on the last 203 occasion. The noble Viscount who replied to me made what, I venture to suggest, was rather a dithyrambic pæan of praise of the action of the Executive, apparently prepared by the Home Office. I hope that to-day the answer will bear rather more relation than it did on the last occasion to the questions that I am putting to the Government.
In dealing with the people who were arrested he said:—
They had formed themselves into a military organisation, under a commanding officer, and were collecting arms and ammunition for transmission to the irregular forces in Ireland.
If that were so, and if that were capable of proof, why was it necessary to proceed under an Order under which you could arrest a person who is suspected of acting, or of being about to act, in a manner prejudicial to the restoration of order in Ireland? If you have your proof you can give it.
He said further on that the Government had in its possession material clearly indicating the existence of this military organisation, and that, therefore, they were bound to take action. Ho added:—
Could it possibly be argued that His Majesty's Government were to allow this kind of thing to go on, that they should have permitted this widespread and subterranean rebellion to grow in strength, to become more firmly rooted?
So far as I know no reasonable human being over suggested that His Majesty's Government should allow it to go on. What is suggested is that, if the facts alleged are true, and if the evidence exists, the person should be brought to trial in the ordinary way: and the best answer to these rhetorical observations of the noble Viscount is the fact of the arrest to-day, under the ordinary criminal law of this country, of Mr. Art O'Brien himself.
The noble Viscount said:—
We should, of course, have to be satisfied, before giving consent to such arrest, that a prima facie case existed.
That is all you have to be satisfied of before you arrest a person and bring him to trial. Finally, he said that if you did not adopt this method of procedure you would give full latitude to disaffected persons to carry on active warfare under the protection of British law. "Conspirators," he added, " would merely have
to cross the Channel and shift their domicile in order to renew their malpractices in perfect security." What does that sentence mean? Does the ordinary law of this country not exist? Do all the Acts which make these practices illegal not exist? Are the offences not statutory crimes? Are not many of them common law crimes? Are our Courts not open for the indictment, prosecution, conviction, and the proper sentence of these people? The claim made apparently is that they should not be prosecuted, but that they should merely be interned and handed over to someone else.
I suggest that in this matter the Government are showing themselves the real anarchists. Those for whom I speak, who care about Constitutional Law, desire that we should retain those liberties and those safeguards for our individual liberty and for fair trial which have been obtained in this country after a long fight, and which have been in existence for many years. We were all willing during the war to submit to a system of very intensive Prussianism because we were all anxious not to embarrass the Executive in any way, and to allow people to act without proof and on suspicion and in any way that seemed good to those in power. But we have now been at peace for a number of years, and it is time that these powers came to an end. Those who desire to use illegal and autocratic powers of this character are themselves the real promoters of anarchy, because they are not willing to rely upon the laws of their country.
It has been said that there will have to be an Indemnity Bill, and I have no doubt that is true. The Home Secretary has incurred penalties, many of them, I imagine, of a somewhat ancient order, involving all kinds of unknown punishments which. I fancy, nobody desires him to undergo. But there is also a rumour that His Majesty's Government propose to take advantage of this Bill to re-enact, in some form or another, autocratic powers of this character. I should be glad to be informed whether that is intended. It was suggested to me that when the Indemnity Bill was produced there would be an opportunity for discussion, and that we should then be able to raise all these points and to consider them. If any scheme of that sort is in the mind of the Government, it cannot 205 be attacked at too early a moment, and it cannot be attacked too often, because I think it is only right to say that there still exists, I trust, in this country a large number of people who, when they realise what is proposed, will resist it to the utmost. When they realise that in time of peace it is proposed to establish Russian methods of arrest and Russian methods of dealing with those who are obnoxious to the Government upon mere suspicion and upon evidence which is not produced in any Court and not even produced to the person arrested, they will be prepared, I think, to resist for a long time anything of the- kind. I should be glad if the noble Viscount would tell us, if he can, when he replies whether it is in the mind of the Government to go beyond that simple indemnity which I think no one is unwilling to grant to the Home Secretary.
I hope that your Lordships will clearly understand that I hold no brief for any of these people. I know nothing about them. They may all be guilty, or they may all be innocent for aught I know. I merely desire that the Government should bring them to trial in the ordinary manner which is recognised in this country, before the ordinary Courts of this country, and should punish them, if necessary, in the ordinary way. I suggest to your Lordships' House that this is ultimately the best and most successful way of preserving law and order. It is the way of carrying with you the good will and the good feeling of that great majority of the population which is in favour of the maintenance of law and order. I desire that your Lordships shall have an opportunity of expressing your opinion on this point at as early a stage as possible and of making it clear to the Government, as I think your Lordships will make it clear, that powers of this sort if they do exist ought to be abrogated, and if they do, not exist ought on no account to be re-enacted; that the Government, having taken a very bad fall by a proceeding which is not only illegal but, I suggest, very ill-advised, should now take no further action of the kind and should let your Lordships' House clearly understand that such action is not proposed.
I have, therefore, placed on the Paper the Motion which I propose to make and
to carry to a Division. It is in these terms:—
That in the opinion of this House there is no justification for the retention by the Executive of any powers of arrest without trial.
Your Lordships will remember the description which the learned Lord Justice gave of these powers: No charge mentioned to the person arrested; no statement of the evidence against him; no opportunity of being brought for trial; internment for an unlimited period at the sole will of the Home Secretary or whatever Secretary of State is acting. I hope that your Lordships will say that this is a state of things that we do not wish to have in this country now, and that your Lordships will not be a party to perpetuating it. I beg to move.
§ Moved to resolve, That in the opinion of this House there is no justification for the retention by the Executive of any powers of arrest without trial.—(Earl Russell.)
§ VISCOUNT LONG OF WRAXALL
My Lords, I ask your Lordships to permit me to say a very few words upon the Motion made by the noble Earl, though not with the object or intention of entering into controversy with him upon the legal points. He is much more capable than I am of dealing with them. For my own part I am content to leave them to be dealt with by His Majesty's Government. I admire the constitutional and legal attainments of the noble Earl immensely; but I admire those of the Lord Chancellor and the learned Law Officers of the Crown still more. And when, at the end of his speech, the noble Earl asked your Lordships to adopt his Motion because inter alia he told us that the Home Secretary took this or that action upon his own initiative and sole responsibility, surely the noble Earl was ignoring that with which we are all familiar—namely, the forms and methods by which this country has been governed for many a long day. If the noble Earl will forgive me for saying so, it is a travesty of the facts of the case to suggest that action of this grave character has ever been taken by a Government, or is likely to be taken by a Government, on the sole responsibility of the Secretary of State for the Home Department or of any other individual Minister. It is taken on the collective 207 responsibility of the Cabinet of the day who are supported and advised by their Law Officers.
I have never listened to a debate upon Irish questions in your Lordships' House, or, indeed, elsewhere, initiated by those holding such views as the noble Earl has told us that he holds, without a feeling of despair. Nobody in your Lordships' House and few, if any, people in the country will dispute the noble Earl's statement as to the necessity of protecting, and the duty of us all to protect, those liberties and privileges which we have inherited and with which our citizenship is bound up. But we have to think of something else, and I have ventured to intervene in this debate because I should be very sorry if His Majesty's Government thought that the only views held in your Lordships' House were those of criticism and attack of the kind expressed by the noble Earl. The legal side of the case has been decided in the Courts, and, as I have already said, I have no doubt that the Government had good reason from the legal point of view for the course which was adopted. Anyhow, I am content to leave the defence of that course to them, and to follow them in supporting that defence.
I look at the matter from a different point of view. With the noble Earl, I believe in maintaining the privileges of our ancient citizenship and the liberty and freedom of the individual about which he was so eloquent. But what alternative has he to offer to the policy which this Government has adopted? What were the circumstances in which that policy was adopted? A friendly Government, a Government which had only just been brought into existence in circumstances of the bitterest controversy, had been doing its best, with what measure of success it is impossible now to say, to administer the government of Ireland. A difficult task, my Lords, and one which has puzzled all the statesmen of this country for more than a hundred years! Whether the new Government have been wise or statesmanlike it is not for us to judge; but nobody will deny that they have been courageous and that they have done their best to restore law and order in the country. They found themselves retarded and obstructed in their work by what they were satisfied was a 208 conspiracy. They applied to His Majesty's Government in England to help them by taking certain action. His Majesty's Government believed that the evidence upon which the Free State Government rested their case was well founded. They had reason to know that there were these extremely dangerous elements existing on this side of the Channel, and they took the action for which they are unequivocally condemned by the noble Earl to-day who asks your Lordships to support him in that condemnation.
May I say most respectfully that I hope your Lordships will do nothing of the kind? I hope you will ask yourselves this question which the noble Earl apparently has not asked himself, before you accept his invitation to condemn the Government: What is the alternative? Is it only of the liberties and privileges of the people of this part of the United Kingdom that we must think when these terrible crises arise in Ireland? What is the noble Earl's alternative? He told your Lordships: and to my amazement on a previous occasion the noble and learned Lord, Lord Buckmaster, speaking with his almost unrivalled knowledge of the law and the facts of this case, expressed a somewhat similar opinion. The noble Earl invited the Government to proceed by the ordinary process of law to try these people and to bring the evidence against them.
Has the noble Earl in all these years never followed the history of Ireland and the difficulties with which Irish Governments have been confronted ever since those unfortunate days when, through weakness in the administration, it was made possible for the long arm of those engaged in criminal practices to follow the witnesses wherever they went and, however they may be disguised, as sure as night follows day, to molest them in the most terrible way? What is to be the consequence of giving evidence in order to secure a conviction? Does not everybody know who has been in the Government, or has been associated with the government of Ireland, that there exists to-day, as powerfully as there ever existed in the history of Ireland, that fundamental difficulty in the administration of the law which was well described by the father of a member of your Lordships' House, a most witty and clever Irishman, when he said that this is the fundamental difference between the 209 people of England and the people of Ireland—"If," he said, " a man in England picks your pocket, and the police have to take him up, and he runs away, the people in England will shout 'Pickpocket,' but if that occurs in Ireland the public will trip up the policeman." You have always that initial difficulty in the enforcement of law that you have in Ireland a public opinion unwilling to support those who have to uphold the law.
As to this particular kind of crime, if crime it be, like the noble Earl I know nothing of these men themselves. The noble Earl declares that he has no desire to defend them, and of that I am quite sure. He knows nothing of the facts; nor do I. I have no desire to condemn them, but I know from my own experience of the government of Ireland—and I believe it is the common experience of everybody who has been responsible for the government of Ireland—that lives are in danger. I am not thinking now of our lives, of the lives of Ministers and ex-Ministers, but I am thinking of the lives of the men who are trying to govern Ireland to-day, and of the lives of those innumerable men and women who are around them endeavouring to aid them. What is the proposal of the noble Earl for their protection? To bring those who are believed to be guilty of conspiracy to trial in this country. What will he say to the witnesses who, I tell him, will refuse to come here? I do not wonder that they will refuse to come. And if they are brought here and are put into the witness box, they will refuse to give evidence. Why? Because they know that what I referred to a moment ago as the "long-arm" will follow them, and make them pay the penalty for their act of courageous devotion to duty. Ever since Carey the informer was murdered on the landing stage at Cape Town, ever since other witnesses were tracked and found out and made to pay the penalty, you have never been able to get evidence in Ireland which would lead to the conviction of any of these people who are charged with these offences.
Dearly though we love justice, keenly though we shall fight for the retention of all those great privileges which we enjoy, and which secure to us justice and liberty, if we are going to make a pronouncement to-day in condemnation of the action of 210 the Government the least we can do is to make some suggestion as to the change which must be made unless we are to let these practices continue. I have no alternative. I have thought about it often and for many years. I am as keen a believer in British justice, British freedom, British liberty and the rights of the British (lag as the noble Earl or anyone else Deeply do I deplore, and have always deplored, the necessity in certain times of crisis and danger of appearing to deviate from the strict path of protection of the liberty of the subject, but we must not only think of the liberty of the subject here, we must think of the liberty of the subject in Ireland where this profoundly difficult task of administering the law and securing obedience to the law is now being carried on by a friendly Government.
I personally regret the legal mistakes that may have been made. The noble Earl seemed to me—I may have misunderstood him—throughout his speech to be endeavouring to attach too much blame to the Home Secretary. Everybody who knows the Home Secretary knows that—quite apart from the fact that he is a man of great ability and long training—he is a man of a personal character which would make an act of this kind odious to him. The last thing he would do, having been responsible for it, would be to seek in any way to avoid that responsibility either by his action in another place or by the affidavit he presented. Surely the noble Earl knows as well as I do that that affidavit was not the individual act of the Home Secretary. It was part of the whole procedure based on the legal advice given to him. Whether the Home Secretary was right or wrong he was only right or wrong as an individual member of the Government. He was advised by his legal advisers, and he had, I am convinced, the benefit not only of the full previous consideration by his colleagues of the whole case, but also their support when he acted, and I am certain their support will not be withdrawn from him now. Whatever we may think of the legal aspect of this matter we may be assured that the Home Secretary, when he gave his advice to his colleagues in the Government, did so because he felt it to be his primary duty if necessary to run certain risks rather than refuse to aid a friendly Government in its desire to maintain law and order.
211 I wish with all my heart that I had some suggestion to make, based upon my long knowledge of Ireland and my experience of the administration of the law there, as to the change which would secure for us the effective administration of the law in that unhappy country. It is possible that great lawyers may be able to give us some advice which, while it is in consonance with our Constitution, will yet help in the detection and punishment of crime. But until that suggestion is made I will have no share or lot in condemning the Government for action which I believe they took in the public-interest. It may have been ill-advised, but I believe it was courageous action, and I hope the day will never come when the British Government will be afraid to take any action which they think necessary to protect the rights and liberties of the humblest amongst us; for that, my Lords, is the issue to-day.
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, on the last occasion when the noble Earl raised this matter in the House I suggested that the occasion was inopportune, because the question was then actually being considered by the Courts. I, of course, make no such complaint to-day, and I am not at all sorry the noble Earl has given us an opportunity of stating our position in regard to this grave and important question. It has already been stated in this House that the action taken by my right hon. friend the Home Secretary was taken on the advice of the Law Officers of the Crown. That was advice which he was entitled to take and to act upon. The Order which he made was questioned, and after a very careful argument it was decided by the Divisional Court to have been valid and justified by the law. That alone shows that the matter was certainly not free from doubt. There was an appeal, and the Court of Appeal, as your Lordships know perfectly well, reversed that decision, and held that the Order was invalid, but on one ground only—namely, on the ground that the persons ordered to be arrested and interned were interned not in this country, where they would be under the control of the Secretary of State himself, but in the Irish Free State.
The noble Earl said—at least I understand him to say—that our Courts in this matter acted with the absolute independence 212 and fearlessness which we have always been accustomed to expect from them. The noble Earl also said something which I do not understand about our Courts having been less firm during the war. I know no justification for such a criticism or reflection. I believe that during the war, as well as before and since the war, our Judges have considered cases and given their decisions without paying the least regard either to the character, good or bad, of the person before them or to the power and authority of the Government. In this matter as in all others our Judges have done just as we expected them to do.
It happens, in one respect it is unfortunate, that on appeal to this House in its Judicial capacity it was found that no such appeal could be entertained, and, therefore, it is impossible to obtain a decision of the highest tribunal in this country. It follows, therefore, that the decision of the Court of Appeal is final and binding, and, of course, it must be, and indeed has been, accepted in the fullest sense. All the persons who were deported to Ireland under this Order, so far as they are not already in this country, will be brought over. As to some of them it is thought right to take measures for their prosecution for offences against our law, and one of them, as the noble Earl has said, is already under arrest for that purpose. As to all the others, they must, of course, be set free on arrival on these shores, with what results time alone will show. I hope I have made it clear that the Government accept and will act upon the order of the Court of Appeal in every respect.
The noble Earl made some observations which I heard with some regret on the conduct of the Home Secretary in this matter. It is not for me to characterise the actions of my own colleague, but I think everyone who knows the Home Secretary knows well that he would act as he has acted with one purpose only—namely, to protect the safety of people in this country, and, so far as his powers allow, to assist the Government of the Free State to secure the end which we all desire, the fullest restoration and maintenance of order in Ireland. He acted with resolution and with a full belief that the Order he made was justified by law, and being the man he is he could have taken no other course.
213 The noble Earl also made some observations about a passage in an affidavit. I think his criticism there, too, is wholly unjustified. The Home Secretary stated, as he was bound to state and as he was advised to state, the exact facts and conditions under which these men were sent to Ireland and put in the custody of the Government of the Free State; but he did not say, and as I know has always refused to say, that he could not procure their return when occasion arose. It was arranged at the time when the men were deported that upon our request they should be returned, and that no action should be taken against them except with the consent of the Government of our country. The Free State will continue to observe that agreement, and the Home Secretary refused to say, and never did say, that the men were not to that extent under his control. There is not the least justification for the observations of the noble Earl founded on a partial quotation from an affidavit in the case. So far, that is the main position. I hope I have been frank about it. I do not think here is any more to be said.
But the Motion of the noble Earl raises quite a different question—namely, a question of policy for the future, and he invites your Lordships to say that there is "no justification for the retention by the Executive of any powers of arrest without trial." I do not know whether he means no justification under present conditions or none under any conditions. There is a difference in the two propositions, but whatever his meaning may be I do not think it is possible for the Government to accept a Motion in that form. I admit, and agree with much that was said about, obscurities in the Restoration of Order in Ireland Act, and in the Regulation made under it. The Act is not a product of the present Government, nor are they responsible for the Regulation. They had to take both Act and Regulation as they found them, and I agree there is a good deal in them which is obscure and requires explanation. Therefore, I think it is necessary to make careful inquiry into the present meaning and effect of this Regulation and that inquiry is now being made with the view to having the actual position cleared up.
It is necessary, and this is the view which the Government take, to consider very carefully how Far the powers conferred 214 by this Regulation, when its meaning is made clear, should be retained and used in case of need. While that inquiry is proceeding, and I hope a decision will be come to within a very short period, it would be most unwise for Parliament to pass a Resolution of this kind absolutely tying our hands whatever the result of that inquiry may be. I hope no such Resolution will be accepted by your Lordships' House. The facts are still not generally known. They ought to be further made known, and when they are known and the position is made clear, then Parliament will be better able to come to a decision.
Let me put this position. There was, when the Order in question was made, and I believe there still is, a conspiracy to promote disorder, disturbance and revolution in the Free State of Southern Ireland. The means used for that purpose are such means as robbery with violence, destruction of public property, burning of buildings, and, if necessary, the murder of individuals. Those are the methods which are used by persons engaged in this conspiracy. No one, I am sure, would desire that that kind of thing should be allowed to continue in our land. We cannot allow England to be made a centre for the preparation of such attacks in the Free State. It is quite easy to say: "Resort to the ordinary processes of law." That is easy to say, but it is not, to my mind, altogether convincing. Everybody who is concerned with the matter knows that, while a case against individuals may be exceedingly strong, may amount to suspicion and often to much more than suspicion, yet if you take legal proceedings in the midst of a disturbance, at a time when the disclosure of facts, of the names of informants and of other matters, may defeat your own purpose of putting down the trouble, you will not only do great harm but you may fail to achieve the end which all honest men desire.
As my noble friend Lord Long said just now, information comes from persons who dare not and who, if you attempted to compel them, would not give the facts in open court. Witnesses would be intimidated while the trial went on and would possibly suffer when the trial was over. It is not fair in times of trouble such as this, while unrest continues and people are still defying the law in the 215 neighbouring country and, indeed, to some extent here, to force a Government to resort to methods which may have effects such as those. I hold as strongly as the noble Earl or anybody else that so far as you can you should and ought to rely upon the ordinary laws. But there are times of crisis, and this is a time of crisis. At such times you have to take the best means you can for the protection of innocent people, and the best means not only to punish those who have broken the law, but to prevent the continuance of lawlessness. It is entirely for that purpose that we desire, before committing ourselves to a final decision—and I hope it may be given, if not in a few hours, within a few days—to take a little time to consider exactly what we should advise Parliament and the country to do.
Let me add this. The action taken by the Home Secretary a few weeks ago, the very action of which complaint is made, has undoubtedly had the effect of crippling and for the moment of rendering entirely inoperative and ineffective the conspiracy to which I have referred. Letters quoted by my noble friend Lord Novar the other day showed the state of utter powerlessness to which some branches of that organisation were reduced. Besides those letters we have other sources of information which show that the action taken had the effect of scotching the snake although not finally killing it. What may be the effect of the present change of position nobody can say, but while we do not for a moment—I want to make this quite clear—propose to go behind the decision of the Court of Appeal or to ask Parliament to reverse and set aside that decision—that is not in our minds—yet everybody, I think, will desire that if need be shown we should keep these special powers, to be exercised if and when they may be required.
For that purpose only I ask the House not to pass a Resolution of this kind, to leave the matter for the careful consideration both of the Government and of Parliament, and not in this way to tie our hands. I hope with all my heart that the time is not far distant when peace will return to the troubled country of Ireland. I think it is our duty to do all we can to bring about that result, and it is only for that purpose and with that view that I 216 ask the House to give full consideration to the observations which I have made.
§ VISCOUNT GREY OF FALLODON
My Lords, I was not in the House when the noble Earl behind me made the earlier part of his speech, and consequently I did not hear the reflections which, as I gather from the replies made to him, he passed upon the conduct of the Home Secretary. I am not therefore in a position to comment upon anything but the latter part of his speech, and I can only express my own personal views on the matter which is now under your Lordships' consideration. With regard to the action of the Home Secretary, though I have no personal knowledge of it, I entirely accept the statement put before us by the noble Viscount opposite, Lord Long, that the Home Secretary acted on legal advice. It was no arbitrary act on his own part, and I should think that very probably it was considered on legal advice by the Cabinet as a whole. The idea of making a personal attack on the Home Secretary in regard to this matter is surely irrelevant.
I further recognise that the Government and the Home Secretary are placed in a difficult position by the extraordinary and painful state of affairs in Ireland, and that in considering this matter they were dealing with something complicated and abnormal. Consequently, though it is clear that a breach of the law or of the Constitution is committed by the executive act of the Government in this matter, I am not anxious to be critical about that, and I shall be quite prepared to accept the very frank statement of the Lord Chancellor that the Government entirely accept the decision which has been given by the highest Court, of Law, and that they will act in the letter and in the spirit in accordance with that decision.
That being so, if a Bill of Indemnity to indemnify the Home Secretary for this particular act comes before your Lordships' House, so far as I personally am concerned, I shall give it support and offer no opposition to it. But I shall do so on condition that it is purely a Bill of Indemnity for this particular action, that it relates solely to the past, that it is an act of indemnity for something illegal done under difficult circumstances, but that it does not 217 prejudice the future and has no words in it to authorise future suspension of the constitution. I would really urge upon His Majesty's Government, in order that this Bill of Indemnity may go through not only by majorities but with real good will, in recognition of the difficulties of the case, that when it comes before us it should be purely a Bill of Indemnity for this one particular act, and that it should not raise complicated questions as to what action may be authorised in the future.
Then I come to the Motion before the House. The actual Motion which the noble Earl has moved has nothing in its wording to connect it with this difficult question of Ireland. The actual words of the Motion are simply these:—That in the opinion of this House there is no justification for the retention by the Executive of any powers of arrest without trial.I regard that as a proposition which your Lordships ought to be ready to endorse as a general principle. It is true that there have been many occasions in the case of Ireland where special authorisation has been given for suspending the Constitution, and there have been powers of arrest without trial. I am not concerned to discuss what may or may not be necessary for carrying on Government in Ireland to-day. But this is not a question of government in Ireland. It is a question of government in England, and much as I deplore the indescribably painful state of affairs in Ireland. I think it would be still more deplorable if, because Ireland is in that state, we in England allowed ourselves to be so infected that we departed from what we have always regarded as the liberties of this country.
I have always understood that the fact that the. Executive must not exercise powers of arrest without trial was the foundation of the liberties of this country. It was that which has made us for centuries boast of being the most free country in Europe. Our liberties have been founded upon that, and when this general proposition comes before your Lordships' House, without reference to a particular act which will be the subject of an indemnity afterwards, I think it would be very regrettable if the House did not find it possible to affirm that general principle, upon which the liberties of this country have been based—that general principle for which, in previous generations, those 218 who cared most for the liberties of this country have been prepared to go even to the length of civil war, rather than see the liberty of the country undermined. I have been thinking, therefore, whether, if the Government cannot accept the actual words on the Paper, they could yet acept some words affirming the general principle, which would prevent its going forth outside that this House is reluctant to stand by that great principle of constitutional liberty with which so many of our ancestors in years gone by have been so intimately associated.
I ask the Government whether, if, for the particular reasons given by the Lord Chancellor, they cannot accept the actual words on the Paper, they could not, as the general principle has been raised, accept some other words. It is very difficult on the spur of the moment to suggest words which would be open to no criticism, but the words that occur to mo are these:That this House affirms the long-established principle of the Constitution, that without the special and previous authority of Parliament the Executive must not exercise powers of arrest without trial.That leaves open the question of great emergency, such as time of war. We have just passed through a time of war in which our liberties were, by common consent, necessarily suspended. I think that some of our troubles since the war have been due to the fact that, the country having got used to the suspension of its liberties during the war, there has been too much tendency to continue in this country that habit of mind, that our liberties were not so impregnable as we had regarded them as being before the war. I agree that in time of war it may be necessary to suspend the Constitution, but I would stipulate that it ought never to be done without the previous authority of Parliament, and I cannot see that there need be any objection to affirming the general principle—that without the special and previous authority of Parliament it is a long-established principle of the Constitution that the Executive shall not exercise powers of arrest without trial.
§ THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY)
My Lords, the noble Viscount has addressed your Lordships, as he always does, with gravity, evidently speaking 219 with a great sense of responsibility, recognising a proposition of English historical Constitutional Law with which I need not say every member of your Lordships' House has general sympathy. We are especially grateful to him that he has spontaneously assured us that any Bill of Indemnity, as he limited it and described it, would receive his support; but when he asks us to go further than that I think your Lordships ought to proceed with the greatest caution. The noble Viscount most frankly and candidly recognised how strong were the arguments advanced by the Lord Chancellor why your Lordships should not agree to the Motion moved by the noble Earl, Lord Russell, and finding them to be so the noble Viscount suggested other words as an alternative to that Motion. He will allow me to say that it would be exceedingly rash of the Government, and If I may say so respectfully, exceedingly rash of your Lordships, to agree to words of the gravest importance without a moment for consideration or for testing their exact purport and meaning. These deal with some of the most important matters of the Constitution, but not only do they deal with the Constitution but they deal with the gravest public disorder with which the Government has been obliged to grapple.
I would ask your Lordships to have a little sympathy with the Government. We did not pass Home Rule. We did not produce this terrible state of things. We did not paralyse the arm of England and produce civil war in Ireland. Some of us protested against it, and urged your Lordships not to agree to it, but we were overruled. The deed was done and the heaviest blow at the Constitution was struck by our predecessors in office. It was largely in consequence of that action that the country displaced that Government and replaced it by another. What were we to do? We must be loyal to the state of things as we find it. It was our duty to face the consequences, and we found the condition of disorder in Ireland which has been described over and over again in this House, and notably by Lord Long, an ex-Chief Secretary, who in a very eloquent speech to-night brought it under your Lordships' notice. We were compelled to deal with it, and the Home Secretary and the Government found this state of things. When the 220 Order in question was issued they found that Ireland seemed to be on the brink of breaking up into actual chaos, and that the head and front of the conspiracy which was to destroy the Irish Free State was to be found in England.
Were they to take no notice of it? Were they to take no action? It was quite evident that it was the duty of the Home Secretary and the Government to do anything they could to try to make good mischief for which they had not been responsible but with which they had to deal. The Government found this Act for the restoration of order upon the Statute Book, and they tried to apply it. I am not going into the point with which my noble and learned friend on the Woolsack dealt, I thought, so effectively, of how difficult it is to deal finally with these conspiracies if you are bound down to the rigid rules which ought to apply, and which we are so proud do apply, to the administration of the law in this country.
I noticed that the noble Earl who moved the Motion to-night, in an extremely effective speech, spoke of these proceedings as having taken place in time of peace. That was his point. In time of peace, my Lords! No doubt there was peace in England, but it was a time of civil war in Ireland, and that is the point of it. Of course, if it had been a normal time of peace, which the noble Earl seemed to think we were enjoying, there was no case. I am certain that in that circumstance there is no Government which has ever ruled in this country which would have been more determined to oppose any deviation from the tradition of the ordinary law than the Conservative Government which is now in power. But this was not in time of peace at all; it was a time of war—war in Ireland of the most violent and malevolent character. And when criticism is made against my light hon. friend the Home Secretary, because he acted, and used these powers in time of war—they may have been illegal: they have turned out to be illegal—I think it does the greatest credit to his moral courage and to his determination to do his utmost to mitigate the condition of disorder in Ireland. I do think, therefore, that we have nothing to be ashamed of in the mistake which has been made.
As to the future, my noble and learned friend on the Woolsack has stated our 221 position absolutely clearly. We accept, of course, in every respect the decision of the Courts against the Government. But while that decision has been given, and while we have not yet had time to consider the exact consequences of that decision, to ask us to bind ourselves, as the noble Earl does in the Motion, for all time not to apply some of the proposals which might be necessary in time of grave disorder, but which, of course, ought not to be used at any other time—that, I think, would be exceedingly rash. In a very short time—in a few days, I hope in the course of a few hours—it will be possible to state perfectly clearly what the decision of the Government ought to be. These matters require grave consideration, and I am quite sure that the noble Viscount on the Front Bench [Lord Grey of Fallodon] would be the last man to ask the Government to hurry into decisions without due consideration, and, least of all, to adopt words drafted at that box on the spur of the moment which we have not had time to scrutinise nor the opportunity of determining whether they are good or bad.
My Lords, I think it will probably be for the convenience of the House if I say a few words in reply, and I should like to begin by saying that if it was understood that I made anything in the nature of a personal attack upon Mr. Bridgeman, as Mr. Bridgeman, that was a mistake. I think the noble Viscount perhaps did not hear that portion of my observations; but when I spoke of the Home Secretary I meant the Home Secretary and his advisers and the Government of which he is a member. I still think, in spite of what the noble and learned Viscount said, that it would have been a better affidavit, and a less disingenuous affidavit, if the right hon. gentleman had not merely not denied that he had the control, but had said definitely, as he said in the House of Commons: "I have the control of these prisoners, and can produce them if desired." That would have been a more dignified form of affidavit to make.
I do not wish to follow the noble Marquess into the question of the creation of the Irish Free State, nor, indeed, am I sure to whom he referred when he said: "We are not responsible for it." I see beside him some of those who surely did have some responsibility in that 222 matter. However, that subject is not relevant to the discussion to-night, and I do not wish to pursue it. I was very much impressed by what was said by the noble Viscount, Lord Long, about the difficulties of getting evidence. It is a point which I quite understand and appreciate. He said that that consideration had been effective ever since the time of Carey. I remember very well the case of Carey. It was a long time ago, and it is in my recollection that since the date of Carey persons in Ireland have been dealt with, and have been punished by the ordinary Courts, and by evidence, and without any of those powers of arrest without trial, until we came to what I might call the quite recent Black-and-Tan days. And if it has been possible to do it since then it might be possible to do it now.
I was also very much impressed by what the noble and learned Viscount on the Woolsack said, and I could not help feeling, while he was speaking, that I should only do him justice in saying that he felt quite as strongly as I did the detestation of any methods which were contrary to our constitutional liberties. Therefore I was most anxious, and am most anxious, to do nothing to impair a feeling which he shares with me as to the merits of the question which we are discussing, and which might become only a question of misapprehension. I did not quite understand the references that the noble and learned Viscount made to this matter being examined and being cleared up. I accept, of course, the statement that the Government are not contravening the decision of the Court of Appeal, and are not, as has been too much the custom lately, introducing an Act of Parliament to reverse the decision of the Court as soon as it is given, but that they are examining the situation and endeavouring to clear it up.
I should have liked to have heard whether that clearing up was by making some new Order under some other Act, or was by legislation which would come before both Houses of Parliament, stating exactly what is required, when the words can be discussed in the ordinary Parliamentary way. If it were by legislation I do not think there could be any objection to it, because, if it were passed by both Houses of Parliament, we naturally would have to accept it, whether we agreed to the legislation or not. But I very much 223 deprecate this legislation by Order in Council, and I hope that, whatever course the Government decide to take, they will do it by putting their proposals fairly, squarely and honestly into a separate Bill before both Houses of Parliament, where they can be considered and discussed in the ordinary way.
Now we come to the actual question of this Motion. An Amendment has been suggested by the noble Viscount on the Front Bench, Lord Grey of Fallodon. If I press this Motion as it stands to a Division, and if your Lordships vote against it, it will go forth to the world that your Lordships' House is opposed to our old constitutional principle of freedom. Your Lordships' House is constantly being misunderstood outside, and I should be sorry to be one to add to that misunderstanding. A vote against this Motion would undoubtedly be misrepresented in many quarters, and I should not like to take the responsibility of putting your Lordships' House into what would appear to be a position not according. I am sure, in the least with the real feeling which you have on this matter of constitutional freedom. As to whether your Lordships would accept or divide upon the suggested Amendment, which I am quite prepared to accept, I would rather leave that to the noble Viscount on the Front Bench. So far as my Motion stands, rather than make your Lordships give a vote which would be, in effect, contrary to your real intention, I should prefer to withdraw it. But as to that it leave myself in the hands of my noble friend on the Front Bench.
§ VISCOUNT GREY OF FALLODON
My Lords, I recognise the point that your Lordships ought not to pass a Resolution which will make it clear that in no circumstances, not even if another great war was upon us, should the Constitution be suspended, and I am anxious not to vote for anything which would by its wording absolutely tie the hands of this and future Governments. But when this question of the power of the Government of this country in ordinary circumstances to arrest without trial is raised as a general principle it stirs my blood, and I want to give a vote for that principle and I do not want to leave this House without having given a vote for that principle. I would, therefore, read once more the words which I have drafted and which 224 I think are not open to any objection but really agree with the point which was raised by the noble Marquess opposite. The words are these:This House 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 trial.If the noble Earl withdraws his Motion I should like to move those words instead of it. If not, I should like to move those words as an Amendment to his Motion. So far as I am concerned, I would still hope that the Government might think my words so safe that they would accept them. But I really would like to stand by those words and to give a vote for them. I beg to move.
Leave out all words after the word ("That") and insert ("this House 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 trial").—(Viscount Grey of Fallodon.)
§ THE MARQUESS CURZON OF KEDLESTON
My Lords, I had not previously taken part in this discussion, and I asked my noble friend sitting beside me to represent the Government because I was called away from the House to preside over a Committee elsewhere at five o'clock and, therefore, did not like to take part in a debate the preliminary stages of which I had not heard. But the point raised by the noble Viscount who leads the Opposition is one with which I think, although I have not heard the whole discussion, I am competent to deal and upon which it is my duty, as Leader of the House, to advise your Lordships. Now, I look at the matter not merely from the point of view of the merits of the Amendment that the noble Viscount has moved, but from its relation to the ordinary course of procedure in your Lordships' House.
Here upon the Paper is a Motion, very clear and definite in its language and in its meaning. Upon that Motion the discussion, so far as I have heard it, has taken place, and the noble Earl who moved it, reluctant to provoke a Division which might be a source of misunderstanding, has announced his intention to withdraw it or, at any rate, not to take it to a Division. Thereupon, the noble 225 Viscount who leads the Opposition, anxious to affirm a constitutional principle which he regards as of the first importance, moves an Amendment entirely altering the whole character of the Motion before us and asking your Lordships—
THE MARQUESS CURZON or KEDLESTON
Yes—undoubtedly extending, expanding and altering the character of the Motion before the House and asking your Lordships at the last moment, on words merely submitted to your Lordships a few moments ago, without any discussion upon the Amendment he has proposed, to accept and to lay down on the part of this House that constitutional principle. I could not possibly as Leader of the House advise your Lordships to take any such step, and I could not advise you to do so because I conceive it to be a wholly illegitimate way of dealing with the Motion which is down upon the Paper. During the time I have sat in this House I have known Resolutions amended by the omission of a word, by the addition of a phrase, by the substitution of one set of words for another on a smaller scale. I have never in my life known a single case where, a Motion of a, particular character having been moved and the mover of that Motion having intimated his intention not to persist in it, an entirely different set of words has been proposed at the last moment as an Amendment.
It is not an Amendment, my Lords; it is a new proposition, and if the noble Viscount, speaking with all the authority of the Leader of the Opposition, desires to ask your Lordships to affirm a series of propositions or principles of the character that he has indicated, let him put them upon the Paper. Let us have a discussion. I should like to take part in such a discussion myself. We will give him, so far as the procedure of your Lordships' House is at our disposal, the fullest opportunity whenever he likes. But to come and ask us to accept this Amendment, this principle, this proposition in the form of an Amendment to a Motion of another character is something which I think it would be contrary to all our practice and procedure to acquiesce in.
I hope, therefore, that the noble Viscount will not persist in his suggestion, 226 and for this reason, that just as the noble Earl is not going to persist in his Amendment because it would place the House in a false position in dividing for or against it, so if the noble Viscount persists in his Amendment now and I am compelled to vote against it, as I shall feel compelled to do, I should be placed in a false position. We none of us want to do that. We none of us want to embarrass each other or to put each other in a false position. If the noble Viscount desires to raise this principle let it be raised on its own merits and according to the customary and traditional procedure of your Lordships' House, but do not ask your Lordships at the last moment to vote upon a proposition which we barely have had time to examine, which none of us has had an opportunity to discuss, and which, if it is worthy of consideration, is worthy of consideration in circumstances much more favourable than those in which it is moved this afternoon.
§ VISCOUNT GREY OF FALLODON
My Lords, my object in bringing forward this form of words was not that which I have sometimes seen pursued in another place of embarrassing the Government. It was really because, this principle having been raised—I did not know of it until I came down to the House this afternoon, and I had not read the terms of the noble Earl's Motion—and it being so important and so long established, I think we ought not to let it drop as if we had not an opinion upon it. But I recognise the force of what the noble Marquess has urged, that it is very difficult for the Government to accept words without time to consider them. I appreciate his offer to give time for a discussion of the general principle, and I would propose, therefore, to put those words upon the Paper as a substantive Notice of Motion.
They would then have this advantage, that they would be separated from any particular details of controversy and would stand simply as a matter of general principle. I would ask the Government to consider the words, and if they find that there are particular objections to them and are prepared with other words which will affirm the general principle, then if they will give a day for the Motion subsequently I should hope that we might arrive at a form of words which would enable us unequivocally and unanimously to affirm this great principle 227 which has been the foundation of our liberties, that the Government should not exercise a power of arrest without trial without special authority from Parliament.
§ Amendment, by leave, withdrawn.
My Lords, the noble Marquess the Leader of the House has truly said that we none of us desire to embarrass each other or to put each other in a false position. Therefore, I think, as the question is going to be raised in a substantive form by a Motion that will satisfy all our constitutional requirements, the best plan for me to pursue would be to withdraw my Motion.
§ Motion, by leave, withdrawn.