HL Deb 20 December 1932 vol 86 cc473-87

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 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 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 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 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 for his execution application was made for a writ of habeas corpuson 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 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 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.)


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 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.


Hear, hear.


I am much obliged to my noble and learned friend. This does not alter their legal position 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 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 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 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 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.


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 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 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

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.)
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.