Lords Sitting of 20 December 1932

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.

SUNDAY ENTERTAINMENTS ACT, 1932 (DARTFORD URBAN DISTRICT ORDER).
THE EARL OF LUCAN: My Lords, I beg to move the Motion which stands in my name upon the Parser.
Moved, That the Order made by the Secretary of State for the Home Department under the Sunday Entertainments. Act, 1932, for extending Section 1 of that Act to the urban district of Dartford, and laid before this House on the 7th instant, be approved.—(The Earl of Lucan.)
On Question, Motion agreed to.

VISITING FORCES (BRITISH COMMONWEALTH) BILL. H.L.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Viscount Hailsham.)
On Question, Motion agreed to.
House in Committee accordingly:
[The EARL OF ONSLOW in the Chair.]
Clause 1:
Provisions with respect to the discipline and internal administration of visiting Forces.
(3) 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 of that part of the Commonwealth and if executed according to the tenor thereof shall be deemed to have been lawfully executed, and any member of a visiting Force who is detained in custody in pursuance of any such sentence, or pending the determination by such a Service Court as aforesaid of a charge
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brought against him, shall for the purposes of any such proceedings as aforesaid be deemed to be in legal custody.
For the purposes of any such proceedings as aforesaid a certificate under the hand of the officer commanding a visiting Force that a member of that Force is being detained for either of the causes aforesaid shall be conclusive evidence of the cause of his detention, but not of his being such a member, and a certificate under the hand of such an officer that the persons specified in the certificate sat as a Service Court of that part of the Commonwealth to which the Force belongs shall be conclusive evidence of that fact.
LORD BUCKMASTER LORD BUCKMASTER moved to leave out subsection (3). The noble and learned Lord said: When this Bill was before your Lordships on Second Reading a discussion took place upon the subsection which is the subject; of my Amendment. It was a discussion which, I cannot help thinking from a careful re-reading of the debate, was greatly misunderstood. It was thought that the remarks made by myself and by my noble and learned friend Lord Atkin, who is unfortunately unable to be here this afternoon, were directed against the principle of the Bill. They were not directed against anything of the kind, but nearly the whole of the speech of the noble Viscount the Leader of the House (Viscount Hailsham) in reply, dealt with the necessity of having a Bill of this kind to secure the discipline of the Forces visiting this country who are referred to in the title "Visiting Forces." He also reflected upon the fact that I had made comments upon the Statute of Westminster, and that I had suggested that it was objectionable because this Bill was necessary to carry out the provisions of the Statute of Westminster when, he said, it had only been rendered necessary by its passage. I admit that there is a distinction between the two phrases, but a distinction which, for the purpose of the matter I was then arguing, appears to me to be infinitesimal.
The point I was on had nothing whatever to do with the necessity for providing that there should be military control exercised by the military officers of a visiting Force. It was with regard to another and a very different matter. It was that subsection (3) as it stood wholly removed from the members of the visiting Force the protection which our Common Law has always afforded to soldiers

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who are resident in this country. In order to make that plain I fear I must trouble your Lordships a little in detail in regard to the way the matter stands to-day. Our Forces over here are, as you all know, regulated by Statutes which have been passed from time to time, of which the latest is the Army Act of 1881. That Statute regulates the powers which confer upon military officers the control and discipline of their troops. It sets out the nature of the tribunal, it states the way in which it should be constituted, it provides for the periods during which a man may be detained before he is brought to trial, and it provides for the punishment of every class of offence from mere detention in the barracks up to sentence of death, and from all these sentences whatever they may be there is no appeal of any kind whatever to any civil authority. I want your Lordships thoroughly to realise that the Army Act has taken out of the civil power the whole of the jurisdiction relating to the control of soldiers who are under officers in this country, and has left them with an appeal only to the military authorities and not to the Civil Courts.
If that matter stood alone any excess or irregularity either in sentence or in procedure would be wholly incapable of being remedied, but the law has provided—and I sincerely hope your Lordships this afternoon will see that it is maintained—a protection which I hope you will not think is archaic or uncouth because it comes down to us from a time when all the processes of the law were clothed in the Imperial purple of the Latin tongue. There were two great writs—the writ of certiorari, and, above and beyond all others, the writ of habeas corpus, to which any soldier was at liberty to appeal if he was suffering from a sentence which the Court had no power to inflict or which had been inflicted by a Court that had been irregularly constituted. I will not detain you discussing the writ of certiorari at any length. It is a very old writ of the highest consequence because it is a writ that enables the procedure of any Court, where it has exceeded in any degree the powers it possesses by the authority of Parliament, to be brought up to the Court of King's Bench, and there declared wrong or void, and if to-day any one of your Lordships presiding at Quarter Sessions were, by a mere mistake, to give a man a sentence a
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day longer than the Act provided, that sentence could be brought up before the Civil Court and the whole thing declared void. It is a vital thing; it is of the utmost importance that Courts entrusted with these solemn powers over the liberty and the lives of the people whom they have to judge should know that beyond them there is a power that can restrain any excessive use of jurisdiction.
While that is true of the Civil Courts, it is equally true of the Military Courts. But the writ of far greater consequences than that is the writ of habeas corpus, the great writ which any man can issue out on behalf of any person whom it is alleged has been unjustly dealt with. Of course these writs are not issued until a case has been made to show that they should be issued, but let that case be made and the writ goes at once to the person in whose custody any person may be, directing him that he shall bring that person up before the Court of King's Bench in order that it may be determined whether he shall remain in custody or not. I do not believe it possible to exaggerate the importance of that Act. It applies equally to all Military Courts, to all Naval Courts and to all Civil Courts. I should like to read to your Lordships what Chief Justice Coke, one of our greatest Judges, said in a matter of this kind in 1861, when the question was whether a man had been detained too long before being brought to trial. He said:
"If a Court-Martial acted without or in excess of its jurisdiction the Court of King's Bench could exercise its controlling authority by writs of prohibition or certiorari against the governor of the prison, or whoever improperly detained a person by a writ of habeas corpus. Writs are issued in protection of the Common Law rights of a soldier against a military officer or a Military Court."
Now, my Lords, these writs are not mere names. It is perfectly true that proceedings are conducted in our Civil Courts and in our Military Courts with clue regard to the authority that is conferred, but is anyone going to say that that must of necessity remain so for all time? Because things move smoothly now, is there any man so bold as to say that that will always be the case? These writs are issued under strange circumstances. There was a man sentenced to death by a military tribunal at the end of the last century, and on the day fixed

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for his execution application was made for a writ of habeas corpus on the ground that he had been irregularly tried. The Court of King's Bench issued a writ, and the Provost-Marshal refused to obey, saying he would only obey his superior officer. They came back at once to the Court and the Court's order was that both the Provost-Marshal and his superior officer should be taken under arrest and brought before the King's Bench. Believe me, these writs are of the highest possible value, unless you are going to permit a soldier to be subject to a disability which affects nobody else in this country.
This writ, a writ extorted from the reluctant hand of the King, we believe to be the very key beam of the whole architectural structure of our liberties. To take that away from the soldier is something that this House ought not to do. The answer that has been suggested is this: "Oh! no. You do not take it away from a man at all." I will read exactly what the noble and learned Viscount said. He said:
"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 tinted 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."
I want to say that unless I am gravely mistaken that is a profound mistake. When you are dealing with a writ of habeas corpus, the first thing to remember is that originally that writ ran throughout the whole of the King's Dominions. From time to time, in regard to various parts of our Empire, the power of issuing a writ here was withdrawn, and by the Act of 1862 no writ of habeas corpus can issue out of this country to any country where Courts are set up by which such a writ can legally be issued. Take Canada and South Africa. In both those countries these writs can be obtained and the result would be that you could not issue here a writ of habeas corpus to protect a British soldier in Canada or South Africa. Do you really think that the Courts of this country are going to recognise a writ issued out of their jurisdiction If you do you must be strangely unfamiliar with the peculiar jealousies that attach to territories with
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regard to the exercise of writs. At the present moment a writ of habeas corpus issued in this country will not run in Scotland. It is a strictly local thing. There would be no power whatever if this Bill were passed to protect the British soldier overseas by issuing a writ of habeas corpus here, and there would be no protection for a Dominion soldier over here by getting a writ of habeas corpus issued in Canada. If, therefore, I am right in saying that this writ is of the highest possible consequence which we ought to do all we can to preserve, I say that this subsection takes those rights away.
It has been suggested that we can do nothing here because we could not interpret the Acts of Canada or of South Africa. It was an argument brought forward in another place and it must have been brought forward by somebody who is wholly ignorant of the fact that in Downing Street the Judicial Committee of the Privy Council sits day after day determining these very things. When it is said that we should not know in the first place what was the law of Canada, and I think also of South Africa, I would reply that they have adopted the provisions of our own Army Act and so we should be construing our own Statute. Apart from that, we should only have to ask for a Statute to be sent here and it could be construed here as well as anywhere else. I should like to go further and say that it might be better construed, but at any rate it is capable of being construed here. The law enforced would, I agree, be the law applicable to the particular soldier by virtue of the particular spot in the Empire from which he came, but that law can be maintained here and it can be examined by the King's Bench as easily as can our own laws. There can be no possible reason for suggesting that the Dominion soldier over here is protected because it may be possible, given a proper lapse of time, to get a writ issued over in Canada.
I have passed by a matter which is apparent to everyone, and that is a question of time. Let me assume the case of a man sentenced to death. Are you going to be sure that you are going to get your writ in Canada or South Africa in time to save the man? Of course, you know perfectly well that time would be of the utmost importance. Take the

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minor case of a man kept in detention beyond the period permitted. You are going to keep him in detention another six weeks at the very least, even assuming when you got your remedy that the remedy was effectual. I can see no conceivable answer to the fact that the remedy of a writ issued over there would be wholly inoperative here as our writ is wholly inoperative there. The suggestion put forward on the Second Reading of this Bill that the Dominion soldier is protected is, I venture to think, an entire fallacy. He has every protection stripped from him by this Bill. That is a matter which appears to me of the utmost gravity.
If you think that I have simply been raising a legal technicality, or a legal quibble, or a legal plausibility, if you think that my Amendment comes within the meaning of any of those phrases which are too often and too lightly used to the discredit of a great profession, then I would unhesitatingly ask your Lordships to reject my Amendment. But if I have made you feel, as I feel myself, that of all the discussions that it has been my privilege to take part in this is one of the very gravest, then I would ask you not to reject my Amendment merely because it is a lawyer who has called your minds to the matter. After all, this is not the first time that lawyers have attempted to protect and maintain public rights, and this is not the first time, and I hope that by many occasions it will not he the last time, when your Lordships' House has been called upon to afford protection against the consequences of hasty and ill-considered laws.
Amendment moved—
Page 2, lines 9 to 36, leave out subsection (3).—(Lord Buckmaster.)
THE SECRETARY OF STATE FOR WAR (VISCOUNT HAILSITAM): Whenever I listen to the noble and learned Lord opposite I realise, as I am sure most of your Lordships must realise, that he speaks with an enthusiasm and an eloquence which are apt almost to carry us away and sweep us off our feet. He speaks with a sincerity and depth of feeling which show how convinced he is of the righteousness of his own cause and tempt one to think that if he is so satisfied about it, it must be right, whatever one's own judgment might lead one to believe. Nevertheless, I am sorry to say
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that it is my difficult task to oppose the noble and learned Lord and to try to satisfy your Lordships that no such grave constitutional consequences are involved as the noble Lord would invite your Lordships to believe. In order to do so I think I must go into some little detail into what this provision does and into the position with which this clause has to deal.
The noble and learned Lord has pointed out what is familiar to all of us, that if there is a military force at all it is an essential that there should be some law for enforcing discipline and that, to a certain extent, by reason of the fact, when a soldier either voluntarily or involuntarily joins a military force he surrenders a certain amount of personal liberty and submits himself to a jurisdiction which otherwise the ordinary citizen is not liable to obey. As far as military forces in this country are concerned there are three possible classes. I want your Lordships, if I may trouble you, to follow why I classify them because, with all respect to the noble and learned Lord, he has mixed up two different classes with one of which this Bill has nothing in the wide world to do—namely, English soldiers enlisted in the United Kingdom. The first of the three classes is the one with which we are normally familiar, the soldiers enlisted over here in the Regular or Auxiliary Forces of the Crown. The second possible class is that of soldiers of foreign Powers who come here on a visit either in time of peace to take part in a competition or display, or in time of war as allies to help us in the struggle. There is, thirdly, the class of soldiers enlisted oversea, either in one of our Colonies or India or one of the Dominions, who come over here for the like purpose, either to assist in some peaceful gathering or to help us in the sterner realities of war.
I want to deal with these classes separately. So far as soldiers enlisted here are concerned, the Regular Forces of the Crown, the Territorial Army and other Forces enlisted under the authority of the United Kingdom Parliament in the United Kingdom, this subsection has nothing to do.
LORD BUCKMASTER: Hear, hear.
VISCOUNT HAILSHAM: I am much obliged to my noble and learned friend. This does not alter their legal position

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in any way at all and the reason why I emphasise the fact is that the noble and learned Lord, having described the provisions of the Army Act and having pointed out that under its provisions there was no appeal to a Civil Court from any determination of a military Court-Martial on any matter within its jurisdiction, said there were these prerogative writs to which he referred and which he begged you to uphold to protect English soldiers from being at time mercy of a tyrannous or bureaucratic military Court-Martial. It is important, therefore, to make it clear that this Rill does not affect that in the slightest degree. If this Bill is passed with this subsection in, the soldier enlisted in the Forces of the United Kingdom will have no more, and no fewer, rights than he has at present.
The two writs to which the noble Lord drew attention are the writ of certiorari and the writ of habeas corpus. I am informed there is no instance of the writ of certiorari being successfully applied for by a serving man or officer, and that there is no instance of a writ of habeas corpus since the Army Act of 1881. There were some a good deal earlier, most of which were founded on some defect in form which, since the Act of 1881, is no longer a suitable objection; but the right to apply for the writ exists, and the only importance which attaches to the fact that it has not been successfully applied for in the last half century in the one case or at all in the other, is that the danger which he fears is not very likely to happen.
My second class comprises the Forces of foreign Powers, and it is important to realise their position because all this much attacked subsection does is to put the Dominion Forces in the same position, as far as discipline in concerned, as every foreign Force is in when it visits our shores. With regard to a foreign Force the recognised principle of International Law is that if one country invites or permits the Force of another to come within its territory, then that Force brings with it the privilege of extraterritoriality and no Court of the country visited can interfere in any way with its discipline. I do not think the noble and learned Lord won d challenge that statement of the law, but I have here Oppenheim's International Law and Hall's
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International Law, both recognised authorities, in which that principle is laid down quite plainly. If, therefore, we invite or permit, say, a French Force to come here to take part in some tournament, or we invite an American Force to come here and assist in our defence when we are fighting any European War, those French soldiers and those American soldiers have no right to apply to a British Court. They are subjected only to the discipline of their own country.
Their remedy, if there be a wrong clone them by their own officers, is to make whatever application their law gives them to the Courts of their own country, and that is the only right they have. And the fact that they come here does not give jurisdiction to our Courts to interfere in any way with the exercise of discipline or with sentences pronounced by the French or American Courts-Martial in the particular instances which I have given. Not only is that the recognised rule of International Law, but, in order that there should be no question raised at all when the American Forces did come over here in very large numbers in the period of the Great War, there was a regulation passed under the Defence of the Realm Act which stated in terms what their position was, which stated it as I have now explained it to your Lordships, and which stated it in exactly the language which you find in this subsection (3). The subsection which is now being impugned is copied word for word from the provisions which were enacted during the Great War in respect of the American Forces when they came over here. And, again, as showing that the dangers about which the noble and learned Lord feels so deeply are imaginary, I do not know that I have ever heard, and I doubt whether your Lordships have, of any attempt made by any French or American soldier to upset that regulation or to challenge in any way its provisions, or of any injustice which is said to have resulted therefrom.
Now I come to the third class, the Colonial and Dominion Forces. Up till two years ago the position with regard to the Colonial and Dominion Forces was that there was a section of the Army Act, Section 177, by which, when their own law made rules as to discipline, those rules could be applicable although they came over here. So far as India and what

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we now normally call the Colonies are concerned, that is still the position. But, in view of the alteration in the position of the Dominions which was agreed to in 1930, which is now enshrined in the Statute of Westminster, an alteration was made in the Army Act, either two or three years ago, in the definition of the word "Colony"; and, whereas Section 177 has the provision which I explained to your Lordships with regard to the Forces of India or a Colony, and whereas in the old definition "Colony" covered all the overseas possessions of the Crown except India, which was named separately: now the expression "Colony," under Section 190 means any part of His Majesty's Dominions exclusive of the United Kingdom, of British India and of any of the Dominions. It includes any protectorate. So that now your Lordships see that the Forces of the Dominions which come over here are no longer subject to the provisions of Section 177. There remains therefore no disciplinary provision to be maintained in this country with regard to the Dominion Forces.
I think your Lordships will readily agree that it is not a tolerable position that, if a Canadian or other Dominion Force is invited over here or comes over to help us, there should be any doubt with regard to that Force remaining subject to the discipline under which the men enlisted. The question was: What provision could we make to deal with that situation? and the provision that the Bill makes is to put them in exactly the same position as any Force from any foreign country which came over here. That is to say, that they will have in their own Courts whatever remedies their Courts give to them. I cannot tell your Lordships—because I do not know—what particular writs may or may not be obtainable by a South African in a South African Court or a Newfoundlander in a Newfoundland Court, or, for that matter, by a Canadian in a Canadian Court, although I think that a writ of certiorari can be applied for there because there is a case where the application failed. But, whatever rights are given them by their own law, those rights they continue to possess when they come over here, just as if they remained in Canada, or wherever it was.
What we have said is that, just as we will not enquire into the jurisdiction of
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a foreign Court-Martial, into the exercise by a foreign officer of jurisdiction over his own men, so we will not in the English Courts enquire into the exercise of jurisdiction by a Dominion officer over his men. In other words, we will not put the Dominion Forces in any different or inferior position to those of any foreign country coming here, and we will not say that the Dominion Courts are less able to vindicate the rights of Dominion citizens who happen to be members of the Dominion Forces than a French or American Court is able to vindicate the rights of French or American soldiers. That is what the Dominions say, and we have agreed to it, and that is what this subsection seeks to do. And it is quite inaccurate to say that by this subsection we are depriving anybody of recourse to the Courts. What we are saying is that a Dominion soldier over here shall have recourse to the Dominion Court and shall have whatever rights the Dominion Courts choose to give him. He can, for instance, if their law is the same as ours, bring an action for false imprisonment. Whatever action he can bring depends on the law which that Dominion enacts; but, whatever it is, he has the same rights as the law gives him.
What this does is to say that his remedy shall be pursued in the Dominion Courts, and that he shall not come to the English Courts or ask the English Courts to enquire into the exercise of Dominion jurisdiction by a Dominion officer. It is confined to members of a Dominion Force. If, for example, a Dominion Court-Martial were to purport to exercise jurisdiction over an Englishman who was not a member of its Force, then there is express provision in the subsection that that person shall have a right to apply to an English Court. The only case that the subsection deals with is the case of a Dominion soldier in a Dominion Force who happens to be over here, and what it says is that that soldier shall continue to apply to the Dominion Courts and to have the rights only that the Dominion Courts give him, and no other.
My noble friend has said that we can interpret these laws quite well over here. That is not the question. It is not a question of whether we can interpret South African or Canadian law over here: the question is whether we shall

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put a Dominion Force which is over here in an inferior position compared to a foreign Force. The Dominions say—and, after all, one has to accept their own view of themselves—that they resent the suggestion that they cannot be trusted just as much to look after the interests of their own men as any foreigner, and they have asked us to pass this subsection in this form—in the form in which, in fact, it was drawn to have reference to the Americans, and, in fact, the form in which it has already been passed in South Africa with regard to the United Kingdom Forces which happened to be there. Whether or not we pass this, of course, will not affect the law in South Africa or Canada. I only tell your Lordships that to show that the Dominions are themselves carrying out the same principle of legislation which they are asking us to pass.
In these circumstances I ask your Lordships to believe that really this great point of constitutional law does not arise, that there can be no question of interfering with the right of any United Kingdom soldier at all, because this Act does not touch it. All that is done with regard to the Dominion soldier is not to deprive him of the right of applying to the Courts but to limit his right to the right to apply to his own Courts instead of coming to an English Court. And that—although it may seem shocking to an English Judge—I venture to suggest does not seem quite so shocking to a Dominion Judge, or, for that matter, to a Dominion soldier. For this reason I ask your Lordships to reject the Amendment which has been moved by my noble friend.
LORD BUCKMASTER: I regret to say that the speech of the noble Viscount has not in any way allayed my anxiety. I agree entirely with him that this Bill does not affect our English soldiers who are here. Nobody ever thought it did; but the next question which I think your Lordships have got to ask is whether the protection that the English soldier enjoys by virtue of his right to this writ of habeas corpus, in the event of his being improperly sentenced or dealt with under the Army Act, is a right to be maintained or to be cast away. If you think it should be maintained (and I think it is of the highest possible consequence) then I
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want to know why you are going to deprive the Dominion Forces of that remedy as soon as they come over here. The remedy over here has always been a remedy open to a person who is in the country. It is independent of nationality. It is the right of every person over here. Just as he is subject to our laws, so he is entitled to avail himself of their privileges, and, although it may be that you may get special conditions with regard to the rare occasions when foreign Forces are here, about which I am not prepared to dogmatise, that seems to me to have no application whatever to the case of our own Dominion Forces when they are over here.
I must say that I was a little surprised to hear it said that this subsection was enacted by regulation directly the American Forces came over here, because, if what the noble and learned Viscount said is correct, there appears to me to have been no need for that to be done. Let us see what it is that this subsection provides. It provides that in the case of any man sentenced by a Court of one of these visiting Forces—and a Court may include a single officer—you must assume, whether it be true or not, that that Court was properly constituted, that its proceedings were regularly conducted, that its sentence was in accordance with law, and that the person who is detained in custody, either pending the sentence or pending its determination, is in lawful custody. In other words, if a man is detained in one of these visiting Forces for a period far in excess of the time for which he enlisted, you must 'assume that it is right, and he has no possible remedy. I want to repeat that he has no remedy. The only remedy open to soldiers with which I am acquainted beyond the writ of certiorari is the writ of habeas corpus. The writ of habeas corpus is taken away from him in this country, and it is wholly inapplicable in the country where he was born, because the writ of habeas corpus, issued there, would not run in this country even if it could be issued.
There can be no doubt that the effect of this subsection, beyond all question, is to take away from men of our Dominions, who are part of a Force visiting this country, a protection which they would enjoy in their own country and which an English soldier enjoys in his

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own country, and for which he has no compensation beyond the fact that his British brother is deprived of that right somewhere else. If South Africa realised why this subsection is objected to, I think they would take care to object to it. I cannot believe that this subsection can have been deliberately passed by people unless they were prepared to say: "Your writ of habeas corpus is an old fashioned and useless remedy; things are going on very well and we will get rid of it altogether." There can be no greater danger, surely, than to get rid of something which has been found so important to our

CONTENTS

Sankey, V. (L. Chancellor.)

Bertie of Thame, V.

Gage, L. (V. Gage.) [Teller.]

Chaplin, V.

Greville, L.

Wellington, D.

Devonport, V.

Hampton, L.

Salisbury, M.

FitzAlan of Derwent, V.

Hanworth, L.

Goschen, V.

Hunsdon of Hunsdon, L.

De La Warr, E.

Hailsham, V.

Hutchison of Montrose, L.

Iddesleigh, E.

Jessel, L.

Lucan, E. [Teller.]

Ampthill, L.

Kilmaine, L.

Malmesbury, E.

Askwith, L.

Lamington, L.

Munster, E.

Butler, L. (E. Carrick.)

Marks, L.

Onslow, E.

Carrington, L.

Ormonde, L.

Peel, E.

Chesham, L.

Rankeillour, L.

Plymouth, E.

Clanwilliam, L. (E. Clan-william.)

Remnant, L.

Rothes, E.

Somerleyton, L.

Stanhope, E.

Desart, L. (E. Desart.)

Stratheona and Mount Royal,L.

Wicklow, E.

Fairfax of Cameron, L.

Wigan, L. (E. Crawford.)

NOT-CONTENTS.

Reading, M.

Buekmaster, L. [Teller.]

Rhayader, L. [Teller.]

Marley, L.

Snell, L.

Allen of Hurtvvood, L.

Redesdale, L.

Sudley, L. (E. Arran.)

Resolved in the affirmative, and Amendment disagreed with accordingly.
Clause 1 agreed to.
Remaining clauses agreed to.
Bill reported without amendment.

EVIDENCE (FOREIGN, DOMINION AND COLONIAL DOCUMENTS) BILL. [H.L.]
Order of the Day for the Third Reading read.
THE LORD CHANCELLOR (VISCOUNT SANKEY): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(The Lord Chancellor.)
On Question, Bill read 3a.
Proof and effect of foreign, Dominion and Colonial registers and certain official certificates.
(4) In this section the expression country "means a Dominion, a British
liberties, because for a long time it has not been exercised. The man who will declare that occasion for its exercise will never arise in the future is bolder than I care to be. Unless your Lordships are satisfied in your minds that it is right to take away from these people a right which they would otherwise enjoy if they came over here, you will support this Amendment, and I must press it to a Division.
On Question, Whether Subsection (3) shall stand part of the clause?
Their Lordships divided:—Contents, 14; Not-Contents, 8.
I Colony or Protectorate, a foreign country, a colony or protectorate of a foreign country, or any mandated territory:
Provided that where a part of a country is under both a local and a central Legislature, an Order under this section may he made as well with respect to that part, as with respect to all the parts under that central Legislature.
THE LORD CHANCELLOR THE LORD CHANCELLOR. moved, in subsection (4), after "Dominion," to insert "the Isle of Man, any of the Channel Islands." The noble and learned Viscount said: My Lords, I am going to ask your Lordships to make one small Amendment to this Bill. You will remember that the Bill deals with a very technical matter—namely, the proof of certain documents made in our Dominions, in our Colonies and in foreign places. By a small drafting mistake the power of extending Clause 1 to the rest of the Empire does not apply to the Isle of Man or the Channel Islands. The

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earlier draft did apply, but when subsection (4) was redrafted to meet the views of my right hon. friend the Secretary of State for the Colonies the new wording failed to cover the Isle of Man and the Channel Islands. The omission has, fortunately, been discovered by my right hon. friend the Secretary of State for Home Affairs. These Islands are included in the Evidence Act, 1851, under which judgments are admissible in evidence both ways, but unfortunately documents such as birth certificates are only admissible one way. For example, a Jersey birth certificate is not evidence in the United Kingdom. There is, therefore, a point of substance in making the clause applicable to the Islands. The proposed Amendment will rectify the omission. I beg to move.
Amendment moved—
Page 3, line 7, after ("Dominion") insert ("the Isle of Man, any of the Channel Islands").—(The Lord Chancellor.)
Bill passed, and sent to the Commons.

EXPIRING LAWS CONTINUANCE BILL.
Order of the Day for the House to be put into Committee read.
Moved, That the, House do now resolve itself into Committee.—(Earl Stanhope.)
House in Committee accordingly:
[The EARL OF' ONSLOW in the Chair.]
Clauses agreed to.
Schedule:

SCHEDULE.

PART I.

1. Session and Chapter.

2. Short. Title.

3. How far continued.

4. Amendment Acts.

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(14)

20 & 21 Geo.

The Public Works Facilities Act 1930.

The whole Act.

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LORD RANKEILLOUR LORD RANKEILLOUR moved to omit the Public Works Facilities Act, 1930, from the Schedule. The noble Lord said: The effect of this Amendment is to leave out from the Schedule the Public Works Facilities Act, 1930. I move it on the
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ground that this Act cuts deep into the system of Private Bill legislation which at present exists. It gives power to local authorities to frame certain schemes which, if necessary, after inquiry, but on the order of the Minister concerned, may come to Parliament and escape their Committee stage. There may be many criticisms to be made of the system of Private Bill legislation for which, along with the noble Earl, Lord Donoughmore, I was for some time responsible. It doubt is somewhat lengthy, and it is somewhat expensive, but at the same time it may be said that a fairer and more searching and, I may add, a cleaner system does not exist, and I think your Lordships should be very careful not to allow its working to be impaired by side winds.
The noble Earl, Lord Stanhope, the other day said that this would only lie used in small schemes, and schemes that were unopposed; but the point I want to make is that even in unopposed schemes the Committee stage is often of great importance. I think you may sometimes latet doles in concordia; where things arc agreed it does not necessarily follow that they are right. On the unopposed Bill Committee in another place very frequently an unopposed Bill was found to embark upon somewhat dangerous ground. For example, there was a Water Bill under which the promoters took power to acquire a considerable extent of land in order to guard their supplies from pollution. The Bill was unopposed, but it came out on examination that some of this land was very valuable and attractive land, and that there was nothing on earth to prevent the promoters of that Bill from turning themselves from a statutory water undertaking into an ordinary land development company under power that had been given to them under Statute. That was stopped. In another case of a Dock Bill the undertakers sought to get compulsory powers to be used solely for their own advantage without any corresponding service to the public. That again was an unopposed Bill. In another case—the case of a very old and well-established and flourishing statutory company—provisions were proposed, again unopposed, which would have created a most mischievous precedent, for there were strange and privileged terms under which large

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issues of money might be made. The Bill was unopposed. There was some real mischief in it which could only be detected by Parliamentary examination.
There is another point. Undoubtedly there is a steady tendency for Departments to encroach on the province of Parliament. I do not say that this is deliberate; I am inclined to think it is not, but it undoubtedly does exist. It probably arises from the hard-working men at the head of Departments thinking out what would work quickest and be most convenient. Undoubtedly the Parliamentary procedure is sometimes a matter of annoyance to them. It delays their schemes, or it may delay them, and it requires the attendance of somebody to lay the case before Parliamentary Committees. If this Bill is passed as a mere item in the Schedule of the Expiring Laws Continuance Bill a. further unfortunate precedent would be created. This Bill was first brought in at a time of emergency as part of the effort of the Government of the day to deal with the emergency of unemployment. That emergency, unhappily, has not passed, but I think it is quite clear that this Act has not been of much value. There were a certain number of schemes in the first year, but in the second and third years only one was promoted.
I do not think we should on any punctilio decline to give assent to anything which the Government on their responsibility seriously regard as for the mitigation of unemployment, and if the noble Earl who represents the Government tells us that he regards this as an important provision to that end, I would say that in that case it ought to have been brought in as a separate Bill for renewing the lapsing Act as was done in the case of the Rent Restrictions Acts and other Acts, the importance of which prevented them from being put in the Schedule of the Expiring Laws Continuance Bill. I think it is necessary to prevent a further precedent being created, and for that reason I ask your Lordships to take serious notice of this matter.
Amendment moved—
Page 4, leave out lines 38 to 40.—(Lord Rankeillour).
THE LORD CHAIRMAN: As I raised this question on the Second Reading of the Bill here it is perhaps my duty to
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add a few words to what I said on that occasion, and so I am taking the rather unusual course of addressing your Lordships while the Bill is in the Committee stage. This procedure is, of course, entirely exceptional procedure—that is admitted on all sides—but we are living in exceptional times and under exceptional circumstances. I am sure that if that is made perfectly clear you will have no hesitation in agreeing to this prolongation of the Act. But I think we should be grateful to the noble Lord, Lord Rankeillour, for raising the question, because your Lordships are very jealous of the procedure of this House and will not make any alteration therein without being perfectly certain that it has had the fullest consideration both specifically and particularly.
The two points which were raised by my noble friend Earl Stanhope on the Second Reading were the advantages of expedition and of economy. My noble friend Lord Donoughmore, my predecessor, speaking on the Second Reading of the Bill when it was originally introduced, mentioned to your Lordships that the elasticity of procedure in your Lordships' House made it possible for Bills to be passed at considerable speed. It is rue, as my noble friend Earl Stanhope said the other day, that an ordinary Private Bill is governed by dates fixed by Standing Orders. It must be introduced in the autumn and then it will get the Royal Assent some time in the following year. There is, however, a procedure known as the late Bill procedure by which a Bill may be introduced at any time. All that is required when a late Bill is introduced is that there should be sufficient time for it to go through its stages in both Houses. Therefore, it is perfectly possible for a Bill to be introduced in May or even later and receive the Royal Assent by July. In the case of a late Bill both Houses are asked to suspend the Standing Orders as to dates and that is done whenever reasonable cause is shown.
Your Lordships will remember that my noble friend Lord Donoughmore said on the Second Reading of the Public Works Facilities Bill that the advantage of this particular Bill was possibly greatest at the end of July. The Government might have a lot of schemes ready which could be proceeded with during the Recess and then, under the provisions of the Act,

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they could pass immediately Parliament met in the autumn. Of course, no scheme can go through without Parliament sitting because confirmation has to be given by Parliament in a Bill. We were told by my noble friend Earl Stanhope that it was not intended to bring forward opposed schemes under this procedure but only to deal with small matters and unopposed schemes. He referred to three which the Minister of Health had in mind. As far as I can see those schemes might be proceeded with by the late Bill procedure, and I do not think that much time would be lost. They could be brought in as soon as they are ready—I gather they are Lot yet ready—and it would be possible to pass them without any emergency procedure.
I would like to mention also the question of economy. I think it is rather dangerous to lay too much stress on economy in these matters. We are all very anxious indeed for economy, but we must be rather careful, I think, of stressing the advantages of economy too far where our procedure is concerned. After all, you might make a great many economies by altering the procedure of this House, but whether they would be desirable or worth making is a very different question. I think myself that stress should be laid on expedition and other advantages rather than on the advantages of economy in this particular instance. I would like to give your Lordships a few details as to the difference in cost as between this procedure and procedure by private Bill. I find that the cost of printing in both cases would be approximately the same. Agents' fees vary according to the size of the Order or of the Bill. They would be about £120 or more. Under this; emergency procedure they might be a little less, perhaps £100. The great economy effected by this procedure is the saving of fees in the two Houses. These amount to about £220. The emergency procedure would be about £200 cheaper than ordinary Private Bill procedure. Those are the points on which I thought your Lordships would wish to be informed.
VISCOUNT BERTIE OF THAME: There are two points to which I wish to draw your Lordships' attention. The first is that when the Bill was originally introduced into the House of Commons it was stated that it was to last until the end
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of 1933. In Committee, Sir Kingsley Wood introduced an Amendment whereby "thirty-three." was left out and "thirty-two" inserted. Further, it was an agreed Amendment because there was no argument and the Government accepted it. Then, when this Bill was before your Lordships on July 28, 1930, the noble Lord, Lord Parmoor, then Leader of the House, said:
" The powers are only conferred for that purpose and the powers altogether come to an end in the year 1932. It is not as though we were superseding for all time the well-known forms of procedure that the noble Earl the Lord Chairman has referred to. We are bringing in a Bill providing a form of procedure which he, with all his experience, knows to be a valuable means for dealing with unemployment, but only for that purpose, and which is not to he in operation in any ease beyond 1932."
That is a very strong statement for the Leader of this House to make and one which doubtless induced your Lordships to allow the Bill to pass. I hope your Lordships will support my noble friend if he goes to Division.
THE UNDER-SECRETARY OF STATE FOR WAR (EARL STANHOPE): I am well aware that this House is very jealous as to its procedure and I am certain that no one on the Government Bench would desire to cavil at the description given by the noble Lord of the value of Select Committees either in this House or, perhaps as we think, to a less degree elsewhere. If this were an Act to abolish our Private Bill procedure, I doubt very much whether I should find myself standing at this box, and at least I should feel very uncomfortable. But that is not the question. As I said on the last occasion, this is only for use for minor Bills.
VISCOUNT BERTIE OF THAME: It is not limited to minor Bills.
EARL STANHOPE: I admit that, and I can only repeat the statement of the Minister of Health that he does not intend to go outside minor Bills under this procedure. Nothing except minor Bills has so far been produced by this method. If, of course, a major Bill were brought up the House has complete control over any Bill under this procedure. What happens is that the Bill is presented by the Minister of Health and it comes before both Houses as having passed Committee. The first stage at which it appears before either Honse is the Re-

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port stage, but, as your Lordships are aware, you can make any Amendment on the Report stage, and of course throw out a Bill or make further Amendments on the Third Reading. The House has therefore complete control over any Bill. Although it does in fact miss the critical examination referred to by Lord Rankeillour, these Bills are examined because, if any objection is raised to them locally, then the Minister of Health holds a local inquiry at which any objections are made; the Minister considers the report of that inquiry and is required to submit that report to both Houses when he lodges his Bill. Your Lordships therefore get the advantage of the inquiry made by the Ministry of Health when the Bill is presented before you. I do not pretend that that is likely to be as critical an examination as the inquiry upstairs of your Lordships, but anyone with a real objection to a Bill has ample opportunity to obtain a hearing in one or other House of Parliament and to have the point fully discussed.
The Public Works Facilities Act is not confined to one clause. There are other clauses of value. It is true, as the noble Chairman said, that not many schemes have been brought forward under Clause 1—I think eight schemes by the Ministry of Health, five by the Ministry of Transport and three by the Scottish Office. Under Clause 2 power is given to make orders authorising local authorities and statutory undertakers to purchase land compulsorily for certain purposes—aerodromes, amongst others. It enables land to be compulsorily purchased without a Provisional Order. I understand that a Provisional Order takes from twelve to eighteen months to come into effect and therefore the saving in time where a Provisional Order would be necessary is considerable. That is of real value, and so far from there having been only a few schemes I understand the Ministry of Health has made something like 200 orders under this clause.
THE MARQUESS OF SALISBURY: May I be permitted to ask whether all these schemes of which the noble Earl speaks were with a view to helping unemployment?
EARL STANHOPE: I think under Clause 2 not entirely, because there was a prospect of making aerodromes, which probably would not give much work to
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the unemployed although on the other hand they might. But under the whole scheme of the Act the general idea is to assist employment by schemes likely to help in that matter. As regards Clause 3 that enables local authorities to obtain easements over land where it is necessary to make a bridge over a statutory undertaking—that is to say, over a railway or a canal. The Ministry of Transport is very anxious to try to abolish level crossings and to make corners easier where there is considerable traffic. This enables land to be acquired or schemes to be made by a much simpler procedure than before. There is a small amendment which enables the Minister to make schemes in regard to the Electricity Commissioners. Where an objection is made which is not withdrawn and the Minister is satisfied that it is a trivial objection or that it has been met by amendments in the scheme, he can make an Order allowing the Electricity Commissioners to go ahead. In that particular case it is obvious that no assistance would be given as regards obtaining employment for the unemployed. I hope that my noble friend will not press his Amendment because the Act is really of considerable value in small ways in which we are able to help unemployment. He suggested that it ought to be put forward again as a separate Bill, as was done in the case of the Rent Restrictions Act, but Part II of this Schedule shows that the Rent Restrictions Act is actually in the Expiring Laws Continuance Bill.
LORD RANKEILLOUR: I think some of the earlier renewals were not.
EARL STANHOPE: That is because they were so framed that they could not be, but here is the Rent Restrictions Act in this Schedule. I know that it is not in Part I but in Part II, but at any rate it does appear in the Bill. I submit that, as I have already pointed out, if a scheme came before you which you thought was dangerous you would have complete power both to amend it and to reject it, and if at any time you found that the Ministry of Health or any other Ministry was taking advantage of this Act to cut across the procedure of your Lordships' House and to dodge (if I may use the expression) the Select Committee procedure, you could at any time move that such an Act should then be dropped out of the Expiring Laws Continuance

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Bill and that Act would then come to an end. I hope very much, after the explanation I have given, that my noble friend will not press his Amendment.
THE MARQUESS OF SALISBURY: I have not infrequently heard discussions rather of this description upon this stage of the Expiring Laws Continuance Bill, but I do think that perhaps those who sit on dm Treasury Bench—I have had some experience of it—forget the kind of way in which those who are not on the Treasury Bench regard the Expiring Laws Continuance Bill. For what happens is this. A Bill or some measure of a controversial character to which a good many people object, and in regard to which there is a great deal to be said on both sides, is submitted to Parliament and comes to your Lordships' House; and, in order to get the Bill through, a clause is put in, either in the original draft or in the course of the Bill through Parliament, which limits the duration of the Bill for a certain period. That is done continually, and then Parliament is assured: "You are not pledging yourself beyond such and such a year; do not be uneasy. This is purely a temporary Bill. After all, no great harm can happen in two or three years"—or whatever the period named may be. "We think your Lordships may without any uneasiness pass this Bill."
We are all very innocent people, and we always accept not only the good faith—of course, we accept the good faith of what we are assured—but also the foresight of the Ministers who give those assurances. And so the Bill is passed. And then, when the period comes to an end, do your Lordships imagine that the Bill is allowed to drop? I was almost going to say very seldom, but at any rate continually it does not drop. It is then nut into the Expiring Laws Continuance Bill, and all the assurances that have been given as to its temporary character are forgotten, laid aside, and we are asked to go on with the Bill just as if it had never been given a temporary character.
The noble Earl just now mentioned the Rent Restrictions Act. That, of course, was a temporary Act. That has always been put into the Expiring Laws Continuance Bill—over and over again. Although it would not be in order for me to discuss it, I believe we are going to
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discuss a Rent Restrictions Bill shortly. That has a limited duration, and no doubt your Lordships will be told when the Bill is going through that we need not be uneasy, that its provisions are all of a temporary character, and that it will not be for ever. But no doubt when the time comes it will go into the same receptacle as this Act is going into now—into the Expiring Laws Continuance Bill. Of course, I do not snake complaint of Ministers doing this. Very often it has to be done. But I would suggest to them that unnecessary action of this kind is gradually deteriorating and depreciating the value of the assurance which is made that a Bill is of a temporary kind. Very soon you will not get anybody to believe it at all. Even the most innocent of your Lordships—if I may venture to use the phrase—will not be misled.
Then we turn to the Bill itself. I must say that as I listened to my noble friend I realised hat he, on behalf of the Government, laid considerable store by the, passage of the Bill, and that must have great weight with your Lordships; but still there were several things that he said which made me uneasy, because it appeared in the course of his argument that the Act which we are now to continue was not wholly directed to unemployment. But I think unemployment was the only argument to be used in its favour. There may be some other argument, but I was not convinced that, because the Minister of Transport wanted to snake bridges over canals and over railways, that was a reason why the ordinary procedure of Parliament should be dispensed with. It appeared to me that, to be consistent, according to the arguments of my noble friend the clauses which would enable the Minister of Transport to do this ought to be left out when we re-enact the Expiring Laws Continuance Bill. I think he said something about an aerodrome. There does not appear to be any reason why we should facilitate the procedure of establishing aerodromes and dispense with the ordinary protection of Committees upstairs.
I am sure your Lordships will not despise the protection of the Committees upstairs. My noble friend said, as he was quite entitled to say, that, even if this procedure is continued, there will always be the Report stage and the Third Read-

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ing stage here. It is quite true it will always be here, but everybody knows that in matters of intricate detail which these Private Bills, or Bills analogous to Private Bills, deal with, the procedure on the floor of the House is quite inappropriate. You cannot go into the detail, neither can you examine the witnesses whose evidence is of importance. I do not know that I need have said this because you have got the assurance of what I might perhaps call the two greatest authorities on Private Bill procedure in your Lordships' House. There is the Lord Chairman himself, who has called your attention to the importance of our ordinary procedure, and there is my noble friend who has moved this Amendment, who was for years responsible for exactly the same procedure in another place. Therefore both are able to assure you of what I think most of us know—how important this procedure of the Committees upstairs is. Unless you are going to scrap the whole of our procedure it is of the greatest importance for the protection of public and private rights to preserve this procedure.
Therefore I am rather uneasy at several of the remarks which my noble friend made in his speech. What it comes to is this. Do the Government say that, for the purpose of checking unemployment, it is necessary to continue this procedure? Do they say that, for the purpose of making all due effort to restrict unemployment, this procedure is necessary? If they say that, I for one have nothing more to say. The situation in regard to unemployment is so grave that I think none of your Lordships would desire to interfere with any adequate remedy which may be proposed. But if this is merely one more effort on the part of the Department to short-circuit the procedure which is so necessary to protect private rights, and also the public interests, then I should very much regret if this Act were continued under the Expiring Laws Continuance Bill. As far as I am personally concerned, it all turns on that. If my noble friend, or any other member of the Government tells us on the responsibility of the Government that the continuance of this Act is really important for the purpose of checking unemployment, I should myself assent to its being continued in the Expiring Laws Continuance Bill, but, if not, then I hope your Lordships will cut it out.
VISCOUNT HAILSHAM: My noble friend Lord Salisbury has asked a direct question of the Government, and therefore I think probably it is appropriate that I should seek to answer it. May I say a word or two about his preliminary remarks? For a moment I thought he was going to discard that innocence which he claimed and approach something very near cynicism when he discussed the views or misdeeds of those who sit on the Treasury Bench. He seemed to have some consciousness, probably, of uneasy recollection of lapses of his own whim he used to occupy the place which I so unworthily fill. There are one or two preliminary points to which I wish to refer. It is quite true that some of the later sections, with regard to aerodromes, are sections which I cannot say very specifically refer to unemployment, but equally it is true that those are not sections which interfere with the procedure of this House. They are matters which accelerate work which ought to be gone on with. They limit the time with regard, for instance, to obtaining Provisional Orders, but they are not matters which deal with the procedure of this House under which we investigate Private Bills.
There is this further observation which I would make. It is perfectly true, as pointed out by the noble Marquess, that a Bill goes through for a limited period and then, possibly, when that time elapses it may take its place in the Expiring Laws Continuance Act. It is true to say that the Schedule of the Expiring Laws Continuance Act has been very drastically cut down from the dimensions which it reached two or three years ago. I think we can have that accounted to us for righteousness, that we have very drastically limited and reduced the Bills which appear there. There is this advantage about the limited character of an Act of Parliament, even if it is afterwards included in the Expiring Laws Continuance Act, and that is that it comes up for review by Parliament and it is for Parliament to say whether it shall go on or not. It is easier then for either House to say that this Act ought not to go on any longer, than it would be in the case of an Act without any limit of time. It ensures that the matter shall be reviewed, and conveniently reviewed, and put an end to if either it has not worked well or the

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particular emergency which it was intended to meet has come to an end.
Dealing now with the particular section to which attention has been called, it was avowedly brought in to deal with an emergency created by unemployment, and I know I shall have the assent of all your Lordships when I say that that emergency is certainly not less grave today than when the Act was passed three years ago. I have been asked a specific question—namely, can I say, as a responsible member of the Government, that it is necessary, in order to check unemployment, to continue this Act? If by that is meant that some tremendous catastrophe would happen, and there would be a very grave increase of unemployment, if this Act were not continued, I could not give you that assurance; but I can give you this assurance, because I have had the question specifically put to the Departments concerned, that they do regard this provision as very useful in dealing with unemployment, and would regard it as a matter of very considerable regret if Parliament did not see fit to continue the Act for the current year. I want to put the thing absolutely frankly and not too high. I venture to think that that assurance of the Ministers more directly responsible does exactly represent the position of the Government, and I venture to hope that it is sufficient to induce your Lordships to allow this Act to remain in the Schedule for another twelve months.
LORD RANKEILLOUR: With regard to the observations of the noble Earl, Lord Stanhope, they seem to me to be an excellent argument Why this Act should be brought in as a separate renewal
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measure. It may be that it includes clauses to which my argument does not apply, but we have to take or reject the Act as a whole and one cannot leave good clauses and take out bad ones. It is simply a case of the acceptance or rejection of an Act, and therefore I do hope that if he is in the same place at the end of next year the noble Earl will not be in the position of defending this provision as an item in the Schedule of the Expiring Laws Continuance Bill, but will be in the position of proposing an amending Bill. I think it would be most unfortunate if there was any suggestion that this House had done anything to reject something which might mitigate the horrors of unemployment, and after the assurance of the noble Viscount, Lord Hailsham, I will ask leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Schedule agreed to.
Bill reported without amendment.

BUSINESS OF THE HOUSE.
VISCOUNT HAILSHAM: My Lords, before we adjourn I would like to call your attention to the fact that there is on the Paper for to-morrow, in the name of Lord Rankeillour, a Motion with regard to the disclosure of secret documents. It does not appear in the Notice which has been circulated, and in case any of your Lordships should desire to attend the debate I thought you would excuse me if I called your attention to the matter to-day.
House adjourned at six o'clock.