VISITING FORCES (BRITISH COMMONWEALTH) BILL. [H.L.] (Hansard, 25 October 1932)

§ THE UNDER-SECRETARY OF STATE FOR WAR (EARL STANHOPE)
My Lords, earlier in the Session I had to explain to your Lordships the reason for the very large number of Amendments to the Army Annual Bill, and I then stated to your Lordships that it was principally due to the Statute of Westminster and the necessity for legislation here and in the Dominions as a result of that Statute. The Bill which I present to your Lordships this afternoon for Second Reading is a further result of that Statute. Prior to its passage the legal position of the armed Forces of the British Commonwealth rested in general upon legislation passed by the United Kingdom Parliament which had to effect two purposes. The first was to provide a legal basis for the application of Dominion defence legislation to Dominion Forces when they were visiting territory outside the Dominions concerned. Secondly, there was the converse case, to provide a legal basis for the position of United Kingdom Forces in the Dominions which could not be overridden by Dominion legislation, and also to provide, to some extent, for assistance from the civil authorities to such Forces. As regards the first point, the legal basis for the application of Dominion defence legislation to Dominion Forces outside their own territory, so far as Naval Forces were concerned that was effected by the Naval Discipline (Dominion Naval Forces) Act, 1911, or by the Colonial Naval Defence Act, 1931. So far as the Army and Air Forces were concerned it has been effected in the past by the operation of Section 177 of the Army and Air Force Acts. Briefly that meant that a Service court of a Dominion Force which was visiting this country could rely on recognition by the Courts of the United 808 Kingdom and could rely on assistance from our civil power for such purposes as the apprehension of deserters and things of that character.
The Statute of Westminster does not become operative so far as Australia, New Zealand and Newfoundland are concerned until adopted by them, but in the case of a Dominion to which the Statute does apply the position under the general principles embodied in the Statute can be stated in this way. As to the first point, when a Dominion Force leaves its own Dominion that Dominion has to arrange by legislation that its defence legislation shall follow it wherever that Force goes. Secondly, if a Force from this country goes to a Dominion then there shall be no interference with the discipline of our Forces and such civil assistance as the Dominion can provide shall be at our disposal. As a corollary to this it is necessary for the Dominions to pass their own legislation to deal with their own Forces when serving outside the Dominions and also with our Forces when they go to the Dominions. That is for them to do. This Parliament has to pass legislation for other Forces visiting this country or visiting the Colonies or the Protectorate of Aden. Your Lordships will remember that last summer a detachment came from Canada to take part in the tattoo at Aldershot, and that detachment was very welcome. As regards ourselves, this Bill affects the Air Force more than the other two Defence Forces, because, as your Lordships know, the Air Force is frequently making flights to South Africa or Australia and therefore it is necessary for them to have the advantage of the legislation of those Dominions.
The phraseology of the Bill is rather different from that to which your Lordships are accustomed, and for this reason. It has been drafted with the idea that it should be a model for Dominion legislation. Therefore your Lordships will find such phrases as "parts of the Commonwealth" put in, so that practically without any alteration Canada or any other Dominion can adopt this Bill and bring it into law. As a matter of fact South Africa has already passed legislation on these lines. As regards the Dominions which have not adopted the Statute of Westminster their position was regulated by the inclusion—as agreed 809 with them—of a new section, 187c, in the Army and Air Force (Annual) Act which your Lordships were good enough to agree to last April.
I will turn now to the clauses of this Bill. Clause 1 is designed to enable the authorities in command of a visiting Force to exercise effective control over the members of such Force. Clause 2 enables arrangements to be made by Order-in-Council to accord to a visiting Force such facilities in relation to several matters as may be accorded in such matters to the Home Forces. Clause 3 provides for the application of the existing arrangements for dealing with deserters from the Home Forces to deserters from the Dominion Forces. The application of this clause in relation to the Forces of any Dominion has been made dependent upon the issue of an Order-in-Council, the intention being that such an Order should be issued when the Dominion concerned has by its legislation made corresponding provision in relation to United Kingdom Forces. In other words, this will be reciprocal legislation. With regard to Clause 4, is a curious fact that there has been no provision for attachment from Dominion Forces to Home Forces and when officers have come here from the Dominions sometimes to command home units they have had to be given a second temporary Commission in order to regularise the situation. That will no longer be necessary if Clause 4 is passed because it provides, so far as the United Kingdom forces are concerned, for the attachment of personnel from United Kingdom to Dominion Forces and vice versa and also for the exercise of mutual powers of command.
Clause 5 deals with the application of the Bill to Dominion Forces visiting the Colonies, Aden and any territory under His Majesty's protection, substantially as though the latter formed part of the United Kingdom. Clause 6 deals with the position in relation to mandated territories. Clause 7 contains a saving clause designed to make it clear that nothing in this Bill affects the arrangements embodied in the existing Acts relating to Naval Forces, which contain special provisions for co-operation between the United Kingdom and the Dominion Navies. I may say that this clause has been drawn up after considerable con- 810 sultation with the Dominion of Canada and the present wording has been agreed with the Canadian Government. There is also in the clause a saving clause for the Army and Air Force Acts in their present continued application to the Commonwealth of Australia, New Zealand and Newfoundland, inasmuch as they have at present decided not to adopt the Statute of Westminster. The remaining clauses are merely formal and I do not think there is anything further I need say. The measure is not an easy one to explain, although its object is simple, and I hope your Lordships will be prepared to give it a Second Reading. I beg to move.

§ LORD MOUNT TEMPLE
My Lords, there is one point I would like to put. I do not expect an answer to it now, as it is rather technical, but perhaps on the Committee stage the noble Earl will give me a reply. In Clause 1, subsection (3) it is provided that a certificate under the hand of the officer commanding a visiting force…shall be conclusive evidence of the cause of his detention, but not of his being such a member. He can say that A has been arrested, say, as a deserter, but there is no evidence there that the person detained is really a deserter. I want to know what steps would be taken to identify the person or alternatively to give the person who denies he is a deserter a chance of clearing himself. It may well be that the section of the Army Act referred to in Clause 3 does provide for that—I am not sure, but perhaps the noble Lord could give me an answer in Committee.

§ EARL STANHOPE
My Lords, I think I can give a partial answer. Probably an escort would be sent over to identify and no doubt they would be able to give evidence in our Courts of Law.

§ LORD MOUNT TEMPLE
He would be brought up in a court of summary jurisdiction which would decide whether it was justified in detaining him?

§ EARL STANHOPE
Yes.