§ Order of the Day for the Second Reading read.
§ THE SECRETARY OF STATE FOR WAR (VISCOUNT HAILSHAM)My Lords, this is a Bill which was introduced and passed through your Lordships' House at the end of last Session, and went to another place very shortly before the Prorogation. In the other place it passed its Second Reading without debate, but on the Committee stage a point was raised with regard to one particular subsection which gave rise to some controversy; and, as the Government was not anxious to force anything through without full discussion at the end of the Session, the Government dropped the Bill for last Session with the promise that it would be reintroduced this Session. In those circumstances your Lordships will not wish me to take a great deal of time in explaining the Bill, as was so admirably done by my noble friend Lord Stanhope on the last occasion.
Quite shortly, the Bill is one which is rendered necessary by the effect of the Statute of Westminster, which keeps on having somewhat unexpected repercussions, although this particular one was 348 foreseen before the Statute was actually passed. As your Lordships appreciate, before the Statute of Westminster was passed the discipline of His Majesty's Forces, whether in this country or in any of His Majesty's Dominions, rested upon the annual Army Act and the Naval Discipline Act. After the Statute of Westminster it became unconstitutional for this country to legislate for the discipline of any of the United Kingdom Forces of the Crown when they were in a self-governing Dominion to which the Statute of Westminster applied; and, similarly, it became unconstitutional for the Forces of a Dominion to come under any discipline in this country by virtue of British legislation without the assent and agreement of the Dominion concerned. Accordingly, at the same time that the Statute of Westminster was arranged there was agreement between the Mother Country and the various Dominions that it would be necessary to legislate in the terms of the present Bill both here and in the various Dominions: and, in fact, the Dominion of South Africa has already passed legislation exactly in the form of the Bill which I am submitting to your Lordships' House.
The plan adopted is that our country shall be exclusively responsible for the discipline of its own Forces wherever in His Majesty's Dominions they may be—that is to say, that when United Kingdom forces visit one of the self-governing Dominions then, by legislation of that Dominion, the discipline shall be enforced by the officers of the particular unit and there shall be no appeal to the Dominion Courts. It shall not be possible for the disciplinary provisions of the British Army Act to be canvassed or challenged in the Dominion Courts. The man, of course, will have his appeal to His Majesty and his appeal to the Army Council just as he has now. The sentence of any Court-Martial will come up in the same way as it does at present, but that will he a matter for the United Kingdom Government and not for the Dominion Government. Conversely, the legislation passed in this country will provide that where a Dominion Force visits this country, then its discipline shall be a matter for the Dominion officers and for the Dominion Courts, and the law of the particular Dominion concerned shall not be canvassed or chal- 349 lenged in the English Courts. Actually, this was the plan adopted when the American Forces were in this country during the Great War, and the scheme which was then adopted, I think under the Defence of the Realm Act, is the scheme which is embodied in the present legislation.
The point raised in the other place in Committee was a point which was made by several lawyers in the debate, and I think only by lawyers. Although I am the last person to suggest that that makes the point less worthy of attention, still it is exclusively, I think, a legal point, and one which really has more legal plausibility than real substance. The point that was raised was that by one subsection, subsection (3) of Clause 1, which prevents the challenge in an English Court of a Dominion sentence so long as it is on a member of a Dominion Force, you were depriving that member of his right of application to a British Court. It is perfectly true you are depriving him of his right of application to an English Court. What rights he has will depend entirely on the legislation of the particular Dominion in which he enlisted, and he will have whatever rights are conferred on him by that legislation and subject to which he actually enlisted. I cannot think that the provision is one which is so very shocking that it would be repugnant to natural justice or to English instincts. The clauses, with that exception, were passed through quite quickly.
Clause 1 provides, as I have stated, that the discipline of each country shall be enforced when the Forces of that country are visiting the United Kingdom—shall he enforced by the officers of that unit, and shall be exclusively enforced by the officers of that unit. Section 2 enables Orders-in-Council to he made regulating relations with the civil power and civilians in this country. Clause 3 has provisions with regards to deserters from Dominion Forces in this country, giving the like powers of arrest and detention which exist with regard to deserters from the Regular Forces. Clause 4 makes provision for a state of affairs which so far has never been the subject of legislation, although obviously it ought to have been—namely, what happens when a United Kingdom officer is attached to a Dominion unit, or a Dominion officer is attached to a United 350 Kingdom unit, and it gives to the officer so attached the like authority as if he were an ordinary member of the Force to which he is attached. Clause 5 enables this Bill to be applicable in the Colonies. Clause 6 enables it to be applied to mandated territories. Clause 7 preserves the existing arrange-merits with regard to the Naval Discipline Act and certain provisions regarding the Air Force Act. Clause 8 is the definition clause. I hope the explanation I have given with regard to the only point so far raised may be satisfactory to your Lordships. If not, when we reach the Committee stage I shall be glad to give any further explanation. I beg to move.
§ Moved, That the Bill be now read 2a.—(Viscount Hailsham.)
§ LORD ATKINMy Lords, as a lawyer I do not feel disposed to apologise for raising, in reference to this Bill, a point which appears to me of great constitutional importance affecting the liberty of the subject. There is a subsection in this Bill which has the effect of repealing the Habeas Corpus Act so far as it relates to British subjects who come to this country as members of visiting Forces of the Dominions. I think that the proposal that is being made is one which is all advised and I very earnestly hope that On consideration it will be abandoned by His Majesty's Government. The tradition of the military Forces has been from time immemorial one in which their Military Courts have been subject to the control of the Civil Courts. It is a cardinal feature of our military law that the British soldier, though he comes under the disciplinary powers of the Army Act and the King's Regulations, is still a British subject with the rights and immunities of a British subject, subject to his position as a soldier. The Civil Courts have, up to to-day, always exercised a control over the Military Courts so that any arbitrary punishment, any punishment that is inflicted without jurisdiction or in excess of jurisdiction, can be at once redressed by the summary procedure which 'the Courts in this country have always given to those who are improperly imprisoned or oppressed.
The great remedy has been the remedy of habeas corpus which has been invoked in military cases before now and which is a remedy given to anybody who sets his 351 foot upon these shores. It is given to foreigners, it is given to aliens, it is given to alien criminals, because they cannot be extradited if the Civil Courts of this country can be satisfied that something has been done to them in excess of jurisdiction. Now, for the first time, it is suggested that the military Forces of the Dominions shall be put in an entirely different position to the military Forces of the Crown, the standing Army, the people who are born in this country and are subject to the Army Act. Members of the British Forces have got these rights of which I speak. They can complain at once of any unfair punishment, and they can go at once to the Courts and can get the position put right. But under this provision in this Bill the Military Courts of a Dominion Force are to have an exclusively extra-territorial jurisdiction.
It seems to me, with great respect, to be quite without precedent and, if I may say so, to have nothing to do with the principle of the Statute of Westminster. The Statute of Westminster, it is true, gave power to a Dominion to exercise its legislation extra-territorially, and in the same way the Statute of Westminster forbids this country from passing Acts of Parliament which would operate in the Dominions. But nobody has ever suggested that the Statute of Westminster was intended to give power to a Dominion which certainly no foreign nation could possibly have—namely, a power so to legislate that it might set up courts in this country and that those courts should function without any control by the Civil Courts at all. There is no reason for it, and I venture to think that it would be most unfortunate if the position were to be, when troops were side by side in the same camp, that the members of a Dominion Force should be subject to arbitrary punishment while the members of the British Force should have recourse at once to the Civil Courts.
But the matter does not rest there, because as I understand the position as stated by the noble and learned Viscount, not only are the Dominion Forces to be deprived of the protection which the Civil Courts can give them here, but the British Forces when they go into the Dominions or Colonies are to be deprived of the protection which up to now they have always had from the Civil Courts of the Dominions. I venture to think that this is not the time, when we are all talking 352 of peace, to tighten the bonds of military service. There is no reason for it. If it were a question of discipline, and a necessary question of discipline, I should be the last to raise any objection if I were satisfied that military conditions demanded this change. But they do not. It is not suggested that they do. Discipline has been maintained in the British Army both here and abroad, when its troops are here or when its troops are in the Dominions, by the existing law, and under the existing law when the troops have the full protection of the Civil Courts. I think that the bargain is a bad bargain to have made, and I hope very much that it will not be carried out.
It is true that this is a point which only touches one particular subsection and I am very glad it is so. This subsection could be taken out of the Bill without affecting in the least, as it seems to me, the substantive provisions of the Bill. Nobody, as far as I know, objects to the Dominions sending their troops here and making them subject to the Dominion Army Acts whatever they are. What is objected to is that when those troops do come here they should be in a different position to the British troops, and that the old established principle by which the Civil Courts control the liberties of the British soldier should be infringed. Therefore, when we come to the Committee stage there is no doubt at all, I think, that there will be a substantial difference on this matter. So far as the Second Reading is concerned I have no doubt at all that your Lordships will see no reason why that should he refused.
§ LORD BUCKMASTERMy Lords, I often think it is very unfortunate that a subject which involves a question of real principle of great value to any citizen of this country should be deemed to be relegated to the arid and dusty arena of legal controversy. Unfortunately I am afraid that in this case it is necessary. I hesitate to use the word "resent," but I feel strongly that the language used by the noble and learned Viscount, Lord Hailsham, has no real justification. To say that this is a legal plausibility and not a matter of real substance is to suggest that we are discussing something which is nothing but a hollow sham. I think there can be no more unprofitable discussion than the chaff chopping of 353 legal plausibility; and if by legal plausibility he means something which appears to be good to lawyers and fails to appeal to anybody else the thing is condemned.
I should like to say one or two words as to why, although this matter is to some extent involved in legal considerations, it touches something far more serious and far-reaching. The clause to which the noble and learned Lord, Lord Atkin, has referred provides that:
Where any sentence has, whether within or without the United Kingdom, been passed upon a member of a visiting force by a service court of that part of the Commonwealth to which the force belongs, then for the purposes of any legal proceedings within the United Kingdom the court shall be deemed to have been properly constituted, and its proceedings shall be deemed to have been regularly conducted and the sentence shall be deemed to be within the jurisdiction of the court and in accordance with the law. …I cannot help thinking that this is a grave denial of rights possessed by people in this country. Military tribunals are subject, and rightly subject, to the Courts of this country and a sentence passed by a tribunal that is imperfectly constituted or that for other circumstances possesses no jurisdiction can be challenged, as it should be, before the Law Courts and the wrong put right. Directly this Bill is passed we find that that disappears and upon the certificate of the officer commanding, the constitution of the court, the regularity of the proceedings and the infliction of the sentence are all to be assumed to be right. That is surely not a mere question either of legal plausibility or of matters in which lawyers alone are concerned.I know that nothing is more distasteful than a discussion in which lawyers only are engaged. Every one of us who has been in another place remembers perfectly well the occasions when some one would say: "Oh! the lawyers are talking about this," and with a look of fatigue on the face determine not to go into the House till the Division bell rang. It was assumed that a matter in which lawyers were concerned was one that concerned lawyers only. It is not so and it is unfortunate that it should be so regarded. It is true that to discuss the rights and wrongs of the subject in relation to the Habeas Corpus Act is a legal matter, but surely it is something far more. Neither Magna (Marta nor the Petition of Rights nor Habeas Corpus was the re- 354 sult of lawyers' efforts, but of the efforts of the people of this country who were determined that their rights should be put in their Statutes.
I do most sincerely hope that the noble Viscount in charge of the Bill will realise that the objection taken by the noble and learned Lord, Lord Atkin, is not a legal technicality or a mere legal plausibility, but that it is a definite matter which affects the rights of people who, although they are soldiers, have rights as citizens. It is poor consolation to hear that if we pass this Bill in this form it is part of the bargain that our people should be deprived of similar rights elsewhere. Unless this can be justified in essence here I cannot see how you can look forward with complacency to seeing the same provisions in force elsewhere. The noble and learned Viscount said that this was carrying out the provisions of the Statute of Westminster. That leaves my withers un wrung. I protested against that Statute before this House. I thought then, and I still think, that it was a Statute passed in defiance of the teaching both of history and of experience, and an attempt to produce in written form a relationship that should have been kept as undefined as possible. When people have seen the way in which another great nation is struggling to escape from the bonds of a written Constitution we might have thought longer than we did before we attempted to bind ourselves in the same way.
§ VISCOUNT HAILSHAMMy Lords, I want to say only a few words in answer to the two speeches because I understand that the matter will be discussed on the Committee stage and I do not wish to say now what I shall then have to reiterate. First may I correct what the noble and learned Lord, Lord Buck-master, finished by saying. I did not say that this was carrying out the provisions of the Statute of Westminster. I am sorry to deprive my noble and learned friend of the peroration which appeals so much to many of your Lordships in denouncing the iniquities of that Statute, but what I said was that this Bill was rendered necessary by reason of the fact that the Statute of Westminster has become law. It is no longer possible to go on as the noble and learned Lord, Lord Atkin, wishes to do, carrying on the existing discipline. Discipline no 355 longer exists in regard to a Dominion Force in this country or a United Kingdom Force in a self-governing Dominion to which the Statute of Westminster is applicable. If no such provision as is contained in this Bill becomes law, the result will be that the moment a Dominion Force comes here its soldiers will be subject to no military law or discipline, and you cannot attempt in any way to keep them under any sort of military control because there is no military law applicable to them. The purpose of this is to apply some form of military law to them. Similarly, if we send to one of the Dominions any British contingent—such a visit as the Air Force is likely to make occasionally and some military bands have made—unless some Statute of this kind is enforced in the Dominion when they land there they cease to be soldiers because there is no Act imposing any discipline.
For that reason, once the Statute of Westminster became law it became necessary to pass some such legislation as this, or else you render it impossible for any Dominion Force ever to come to this country, because no Dominion is going to send its Forces here when the effect is equivalent to a disbandment. It is essential, too, for Dominions to whom the Statute of Westminster is applicable to pass some such Bill as this. That is the reason why this Statute is necessary. The noble Lords who criticised subsection (3) of Clause 1 seem to think that the effect of it was that all right of any sort to complain to any Court disappeared, if this became law. That is not what happens at all. What happens is this. A Dominion soldier can only challenge in a Dominion Court the act of a Dominion officer, and similarly a United Kingdom soldier can only challenge it in a United Kingdom Court. That may be a wise or an unwise provision, but it is not accurate to suggest that once this Bill becomes law then, whatever happens to any Dominion soldier in this country, nobody can ever interfere.
§ VISCOUNT HAILSHAMThat is the point. A British Court will not interfere with the discipline of a Dominion Force, and similarly a Dominion Court will not interfere with the discipline of an English 356 Force. At any rate it cannot be said that the rights of appeal to a Court disappear.
§ LORD BUCKMASTERThe noble Viscount has misunderstood the point, which is, that the rights which exist here have been taken away.
§ VISCOUNT HAILSHAMI am very glad that the noble and learned Lord agrees with me. What happens? I will take the case of a Canadian contingent, because in Australia and New Zealand the Statute of Westminster does not apply. To South Africa and Canada it will apply. In South Africa, as I have told your Lordships, already this form of legislation has been passed and does apply to-day to any United Kingdom Force that visits South Africa. What happens is that if, for example, a Canadian contingent comes over here, as it did last summer to take part in the Tattoo, without this Statute there is no discipline enforceable on this contingent when it lands. With this Statute it will be enforceable, and it will be discipline enforceable by the law of the Dominion in which that particular contingent enlisted, and if there is any excess of jurisdiction by a Dominion officer over his men that can be challenged in the Dominion Courts but not in the United Kingdom Courts. That is the whole effect of this subsection. The Bill as a whole applies discipline generally and I hope that for the reasons I have given your Lordships will realise that it is a desirable provision to make. I gather that nobody disputes that some Bill is necessary.
§ THE MARQUESS OF READINGWill the noble and learned Viscount refer to page 10 of the Bill? He made a statement about the subsection not applying to the Forces of Dominions such as Australia and New Zealand. Will he look at page 10, where there is a definition of "Visiting Force"? Surely, it does apply, because the Bill says:
Visiting Force' means any holy, contingent, or detachment of the Naval, Military and Air Forces of His Majesty raised in the Dominion of Canada, the Commonwealth of Australia. the Dominion of New Zealand,and so on.
§ VISCOUNT HAILSHAMI think the noble and learned Marquess will find that the answer is that they come in 357 when the Statute of Westminster becomes applicable to those various parts of the Commonwealth. It has not yet become applicable to Australia and New Zealand. If the Statute of Westminster he adopted by Australia and New Zealand then this Bill will, without further legislation, be applied to them. I will, however, look further into the matter.
§ THE MARQUESS OF READINGThere appears to be nothing in the Bill to that effect.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.