§ Order of the Day for the Second Reading read.
§ 4.5 p.m.
§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, I move your Lordships to give this Bill a Second Reading. It has been introduced by His 4 Majesty's Government to provide for a possible emergency—an emergency that may not arise. We may think that as the weeks pass it is less likely to arise; but an emergency none the less might arise, and it is one for which we should make preparation beforehand. In the terms of the Bill, on page 2, the emergency is described as one whereby reason of recent or immediately apprehended enemy action the military situation is such as to require that criminal justice should be administered more speedily than would be practicable by the ordinary Courts.…As your Lordships know, such a situation is met under the law in various parts of the world by such devices as proclaiming a stage of siege. Indeed, even in our own phraseology we sometimes speak of a proclamation of Martial Law. The fact of the matter is that Martial Law is no part of the law of this country at all. The taking charge by the military of an area with the result that they punish civilians and execute sentences upon them may be brought about in extreme cases by considerations of necessity—a necessity which makes it only common sense that those who have immediate force at their disposal should use it in the public interest for the purpose of rapidly suppressing rebellion or treacherous conduct and punishing action which, if it had not immediately suffered punishment, would have been likely still further to damage the interests of the country. But no competent student of our Constitution will doubt what has again and again been said by the greatest authorities in ancient and modern times alike: that Martial Law—the application of the rule of soldiers to civilians—is no part of our law at all.
None the less, it is to that resource that we should have to turn if a situation so developed in some part of the Kingdom that it was no longer possible to rely on the administration of criminal justice in our ordinary civil Courts, The main purpose of this Bill, and one which I think your Lordships will generously and warmly support, is to secure that if per-adventure in the future a situation should arise in some area in this island where the ordinary law of the land was not reasonably able to administer criminal justice and either acquit or punish, we should devise a more speedy proceeding, well suited to the occasion, which would act not by setting up a system of military 5 courts, but by setting up special tribunals of a civilian kind staffed by men who were versed in the administration of the law. Military Law is, of course, the law which applies to those who are subject to it—soldiers, sailors and airmen—and that no doubt would go on in any event. But I do not doubt that this House will warmly desire to secure the results which I have indicated. It was found in the House of Commons that that was the universal wish; and there are many indications, which have, I suppose, reached most of us, that it is very much better, if we must do it, to devise some simple, rapid system of civil justice to deal with crime in a disturbed area, rather than that we should leave what is called Martial Law to be applied, carefully though that is done, by military officers, if not indeed very rapidly, as is shown by past experience in other parts of the world, but none the less so manifestly outside the law that at the end of it all we should need an Act of Indemnity to cover the decisions at which these military courts had arrived in respect of civilians.
That, then, is the object of this Bill. Should that emergency arise, the object is that we may, in such circumstances as may be provided for by Defence Regulations, secure that persons will be tried by such special Courts, not being Courts Martial, as may be provided. What are the requirements which we should satisfy? These special Courts, in the first place, must be able to act with great speed. In the situation which we are imagining, the rapid punishment of crime, and particularly of some kinds of crime, is absolutely essential, in order to maintain public order and to restrain others from committing like offences. We must also make sure that the Courts are properly staffed for the purpose of their work, and that provision shall be properly made to secure that justice is done. I may mention two matters not included in our ordinary lists of crimes which already we have found it necessary, in anticipation, to deal with by Defence Regulations. One is looting. If indeed there was a sustained air attack in some neighbourhood which threw great numbers of houses open to anyone who chose to make his way in, it is not possible to conceive a more serious crime than that there should be looting and the seizing of other people's property when 6 it is thus exposed. If such a thing were not rapidly suppressed, the results might be very serious indeed. Again, there is a crime which is well known to soldiers, but perhaps not so well known to others, the crime of breaking safeguard—that is to say, of forcing a way along a road or across a barricade and disregarding the necessary orders which are given and the necessary sentries that are posted. Such a thing, of course, can easily produce, and again and again on the Continent of Europe has produced, such disasters in its train as the indiscriminate helter-skelter of the civilian population. That cannot be allowed, and therefore these new Courts ought to be able to deal with offences of this kind very rapidly indeed.
I wish to put before the House the detailed provisions which are in course of being drafted in order to set up this new jurisdiction. The most essential things, of course, can be put in a Bill, but there are very important things for which in the circumstances we are bound to provide by Defence Regulations. For one thing, we are providing for an emergency which may arise at any time; and it is no good spending weeks and weeks in discussing a series of clauses if there is a risk of our needing to use these provisions almost forthwith. There is another reason, moreover, why we should largely rely on Defence Regulations for minor matters, and it is this. No one, I think, will doubt the desire of every responsible man in the country that these Courts should conduct their affairs fairly and quickly and with justice to all concerned; but this is a new departure, and it may be that in one particular or another some improvement will be shown to be necessary in the course of experience. This can be very much more readily dealt with by a change in the Defence Regulations rather than by producing an amending Act.
What, therefore, I desire to do, if your Lordships will allow it, is to give as clear a statement as I can of what the scheme is, based, of course, on the statutory provision that there will be special Courts, not Courts Martial, available for dealing with crime if the emergency which I have described should develop in any part of the country. That there is a general desire to avoid a situation in which soldiers would be trying and punishing 7 civilians is certain, because I am authorised to say by the War Office—and I have myself made inquiries of those responsible—that they most earnestly hope that Parliament will remove this task from their shoulders and will place it where it ought to be placed, on the shoulders of special civilian Courts. I should think that to attempt to administer justice in a civilian population by holding trials and pronouncing sentences must at all times be very repugnant to serving soldiers, and especially so if it is our own country which is being invaded, and when all the forces that were organised to defend us are anxious to engage in their real duties and do not want to tell off officers—and, of necessity, officers of superior rank—for the business of trying criminals who are not soldiers at all. I say, therefore, that we must have a civil Court, we must have a Court which does its work carefully and justly, and we must have a Court which does its work rapidly.
Now, my Lords, the scheme is this. It is proposed that in case of need, if the situation which I have described arises, the Minister for Home Security should at once declare a suitable area a war zone. He would act, of course, in consultation with the military authorities. Thereupon there would come into existence, with full jurisdiction, what we would propose to call a War Zone Court. A War Zone Court would have as its President one or other of a number of persons on a panel, who would be on a standard of equality with a Judge of the Supreme Court. Since it is proposed that I, as Lord Chancellor, should have the duty of selecting the individuals, I may tell your Lordships that very great care will be taken to secure, as everybody would wish, members of the High Court who by experience and training and, if you like, by temperament, are the best who can be secured for such a purpose. It may be necessary occasionally to add not exactly High Court Judges but others who are included in the Commission of Assize—trained lawyers, King's Counsel of considerable standing. In substance, however, the War Zone Court will be a Court whose President is a High Court Judge.
It has been very strongly represented to me by some High Court Judges, and I 8 do not think there is any harm in saying it here, that while they will, of course, endeavour to discharge any duty which the State calls upon them to discharge in these times, nevertheless to put a single man all alone to decide the question of whether a fellow-citizen shall or shall not be shot is a terrible burden. It is one which cannot be paralleled in any system of criminal justice of which I know. Necessarily there cannot be a jury and, in the Continental systems with which I am acquainted, in cases of that kind the presiding Judge always has a number of advisers. The proposal here is that there should be added to each War Zone Court in respect of every case which it tries, two other members as advisory members, not having the powers of a majority to outvote a trained and expert Judge either on fact or on legal points, but whom he is required to consult, with whom he will confer, and who will give him, it may be, special help because of their knowledge of the part of the country from which they come.
Who should these advisory members be? That has been very carefully considered, and I am quite clearly of the view that the right panel of advisory members is a selection from the justices of the peace, over whom the Lord Chancellor exercises a certain responsibility, and I am confident that he can find a list of suitable persons who have had experience who will bring to the task the qualities that are required, and who will give to the High Court Judge who presides and the public and the prisoner a sense that the matter is not going to be dealt with by a single person. Of course arrangements will be made in the Regulations to secure that if the accused is a poor man the Poor Prisoners legislation shall apply to him. Of course the sittings will be in open Court except in the rare cases when it may be necessary, in the public interest or for reasons of defence, to sit within closed doors. And of course, broadly speaking, the general procedure which is carried on in a Court of criminal justice in this country—which I make bold to say is the best in the world—will unquestionably be available.
Why will this be more speedy than the existing method? It will be much more speedy for this reason, that it will be possible under this system either for the military or for the police to bring any particular accusation, any particular 9 person who has been arrested or detained, before this Court in the first instance without any delay at all. Your Lordships know very well how the great mass of our criminal cases are decided after a process which begins before the magistrates, where evidence is laboriously recorded; then, if the magistrates commit, there is a certain pause, after which, either at Quarter Sessions or at the Assize Court, when the Assize Judge comes round, the matter may be tried and disposed of. That time-table in this case is quite impossible; therefore the great advantage is that the special Courts will be available to act in the first instance as promptly as anybody wants them. Arrangements will be made that both the President and those who sit with him will be available at the shortest notice. There will not be listed sittings at certain intervals, but they will be available whenever they are required.
There is one other thing I wish to mention under this head. It would be a great misfortune if, in this attempt to secure swifter justice, you block or clog the special Courts with cases which, though they may be serious cases of crime, none the less do not call for any very special dispatch. False coinage of money is no doubt a grave offence, and there are many others, such as long-term frauds. It would appear to be quite absurd to organise this special system of justice and then allow it to be overlaid by cases of that sort. It is provided that the presiding Judge of this special Court should have the right, not as a result of an argument before him, but as a result of examining the information—in some cases depositions—to say, "This case can perfectly well be dealt with when next the Court of Assize or Quarter Sessions sits. My duty here is to deal with the urgent cases and to postpone cases like this because of their character." That I think will be generally approved.
§ VISCOUNT CECIL OF CHELWOOD
Could the noble and learned Viscount say how many advisory members there will be?
§ THE LORD CHANCELLOR
There will be two sitting with each President, and there will have to be a panel of a considerable number because, even on grounds of speed, one can imagine a situation where it is important to be able 10 to get hold of two people in the area where the Court will sit. Of course the Court will not sit at one particular place. It will not sit at the Old Bailey, it will be at a place most convenient for the purpose. It must be far enough distant from the fighting for the solemn business of the law to be conducted without interruption, but otherwise it has to be as near to the zone of fighting as may be.
There is one other thing I should like to tell your Lordships, and the more so because it is not at present indicated in the Bill before your Lordships' House. The Home Secretary has been considering this matter very closely with public men and Members of Parliament who, like the rest of us, are much concerned to see that there is an adequate protection for the subject—a most important thing. Even a High Court Judge may not be altogether immune from the sensations of the hour, and, whatever happens, we must see that people are not condemned on grave suspicion but are properly tried; and it has been pointed out that it would be a great strengthening of the system if there was some provision for the review of the decision of the War Zone Court. Of course, the full-fledged and elaborate retrial, with all the witnesses all over again, and the argument all over again, is not contemplated. You have to remember that we are devising a system which will be substituted for the action of the military, under Military Law, and if we are too elaborate, put too many additional cogs into the machine, then we shall not satisfy the demand for a speedy decision. I believe there is a strong case for the provision in important and serious cases for a review, and the Home Secretary informs me that he has made provisional suggestions of this kind which, at any rate as far as those whom he has consulted are concerned, are thought to be satisfactory. It is proposed that there should be constituted a panel of judges of the highest possible standard and quality, from whom can be drawn individuals for the purpose of reviewing serious sentences. My own idea is that I could make the panel out of members of the Court of Appeal and the Law Lords who have served here in your Lordships' House, and no doubt similar arrangements could be made in Scotland.
11 Now what should be the conditions under which this body of review is to be called into being? I think it would be a mistake in every case, some, maybe, extremely trumpery, to go through all this additional machinery, and the proposal in substance is this, that three—I emphasize three, because the numbers have been much debated—out of this higher panel should act as a body of review in every case where the sentence is a sentence of death, or in any other case where the President of the Court certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact, or is one which for any other reason ought properly to be reviewed. Having consulted the Judges about it, we believe that would work satisfactorily.
I may add that although it is not by any means the case that as a matter of course there would be an appeal, with counsel and all the rest of it, none the less it is proposed to include provisions by which the same kind of action can be taken as is taken by the Court of Criminal Appeal. Your Lordships no doubt know that for a very long time in our history, for practical purposes, there was no appeal from criminal convictions until the Court of Criminal Appeal Act was passed. Appeals in the ordinary way from criminal convictions, except for technical reasons, were almost unknown. We now have a system in England which works admirably, by which, if the convicted person wishes to appeal, he sends up his papers, these papers are examined by Judges appointed for the purpose, they decide whether or not the case is one that justifies allowing a re-argument before them, and in these cases counsel are instructed and sometimes very important arguments on points of law emerge. I believe, subject to some simplification, we can do the same thing here.
If we do, we shall have achieved these results. We shall have secured—I trust we may be able at all costs to secure—this without recourse to Martial Law. That has never been any part of our system here. It represents nothing more than an effort on the part of the military, when the situation is sufficiently desperate, to try and keep order and punish crime. Though I recognise with how much care 12 that has sometimes been done by the British Army in various areas abroad, we should all be very sorry to write in our history that it has ever occurred in this island at all. We shall have secured, in the second place, that the crimes which must be dealt with quickly will be dealt with by a tribunal set up for the purpose, and presided over by a High Court Judge of experience and suitable for the task. We shall have secured, in the third place, if there be a case that justifies it, that that shall not be the end of it, but that there shall be a review of the decision, whether on fact or on law, and that the utmost we can do shall be done to maintain the high standard of British justice and, I will add, of fair treatment of our own fellow citizens, however unpopular they may be, which is one of the first duties of any criminal court. All this would not in any way remove the discretion that rests, and must rest, with the Secretary of State for Home Affairs, who has the duty—and nobody can take it from him—of advising His Majesty on the Prerogative of mercy.
I submit to your Lordships that that is a workable and fair scheme, and one that would justify general support. I shall look forward with great interest to any suggestions which are made in the course of the debate. I believe it will be a very great achievement for us to establish this system now in order that we may use it should it be necessary, but our greatest hope is that the day may never come when it will be necessary to use it. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2ª.—(The Lord Chancellor.)
§ 4.36 p.m.
§ LORD MOTTISTONE, who had given Notice that, on the Motion for the Second Reading, he would move, That the Bill be read 2ª this day six months, said: My Lords, I rise to move the rejection of this Bill, not in any spirit of hostility to the Government, for I have consulted the Home Secretary himself and the Lord Chancellor on the Woolsack, but because I consider—and I trust some of your Lordships will agree with me—that this legislation is not well devised, that the proclamation of war zones, as is proposed, quite overlooks the nature of the problem we have to face, and that we ought not to give the Executive further power to 13 repress the citizens of this country until we have given them perfectly clear guidance as to what their duties are in the country as a whole or in the war zones, to which I object.
§ Why do I object to this proposal to set up war zones? It is all part of the notion, as I see it, which has grown up in Government Departments to make a distinction between the place where hostilities are likely to occur in this country and at the same time between the duties of citizens with regard to that invasion. With deep respect, taking the Lord Chancellor's own words, what can be the sense of setting up a Court sufficiently remote from the fighting to be free from the embarrassment thus caused, and not sufficiently near as to run the danger of being overcome itself, when we are told by the War Office that we must naturally expect invasion to be from the sea and from the air, and that it may come anywhere? Anyone who knows this country, and has moved about it, is aware that in all parts of it arrangements are made to withstand the enemy. Therefore the first point I make to the Lord Chancellor, who was good enough to say in his clear exposition that he would answer all points raised, is: Why not make the Bill applicable to Great Britain and Northern Ireland as a whole?
§ LORD MOTTISTONE
At the same time—whenever you do one, do all, because the danger of invasion must in the nature of the case be imminent in every part of this, realm, as daily experience shows. If it be said that actual invasion means invasion in force from the sea, I would say we have also been told by the War Office, in communications we have read in the newspapers, that it is quite possible very considerable invasion might be made from the air, inland, as was the case in Norway and other countries. Therefore I say the zone system is wrong. I maintain that this extraordinary power should not be given to set up a special Court, with apparently a very restricted right of appeal, until we have told the citizens exactly what is their duty. They have not yet been told. In a previous debate I raised the point as to the rights and duties of the citizen as laid down by domestic and International Law. Surely the first thing a 14 citizen ought to be told, before we set up a Court that can condemn him to death, as I understand, for what the Lord Chancellor has called rebellious conduct, is to be told what is the law he must obey. That is still in doubt in the minds of many citizens in this country, though I believe it is not in doubt in the minds of any member of His Majesty's Government. The Lord Chancellor will tell me if I am wrong, but I believe that all members of His Majesty's Government are agreed that the citizens of this country are bound by domestic and International Law to use all the force they can to overcome an invader.
In order to make this point, may I remind your Lordships of the International Law on the subject? It may be said "But surely people know this." Indeed they do not. The Home Guard—the L.D.V. as they were called—are many of them in great doubt. In my own county I have been asked a dozen times whether they will be acting contrary to International Law if they shoot in front of a village in order to repel an invader. We have been told quite clearly at different times by members of the Government that, of course, they are to be treated as combatants, but it has never been put in one specific document laying it down that they are to be treated as combatants and belligerents. In order that I may convince your Lordships that there is some justification for a statement of this sort to be made before we pass this repressive legislation, I will relate a conversation I had the other day. I then met a man whom everybody respects, and it so happens that my noble friend Lord Strabolgi was in company with me and he may remember the occasion. The gentleman in question was Sir Hugh O'Neill, who, I suppose, may be regarded as one of the most level-headed and well-informed men you could find. I put this point to him. I think he is a member of His Majesty's Government, if I remember aright.
§ LORD MOTTISTONE
The Lord Chancellor told me this morning that he was, but at any rate he was the Speaker of the Irish House of Commons, and he is a man of renowned common sense and remarkably well informed. I said to him, "Are any of your people clear as to what their rights and duties are?" And 15 he replied: "Not according to English law." "But what about International law?" "We are a good deal puzzled about that." Therefore I rehearsed to him what I will now tell your Lordships. Article (1) of The Hague Convention of 1907 runs:The laws, rights and duties of war apply not only to an Army but also to Militia and Volunteer Corps fulfilling the following conditions: (a) To be commanded by a person responsible for his subordinates; (b) to have a fixed distinctive emblem visible at a distance; (c) to carry arms openly; and (d) to conduct their operations in accordance with the laws and customs of war.That latter is very important. Germany has agreed to that Convention and it is just as well that it should be clearly stated so that every civilian shall understand that he is acting not only in conformity with the law of this land, but with International Law to which Germany agrees.
I do beg of the Lord Chancellor to promise me that he will make this abundantly clear, because it would have a double advantage. The citizen Army would be reminded that all must obey the laws and customs of war—that is to say, for example, that they will not use flat-nosed bullets and they will not murder a prisoner. There will also be the great advantage that our enemies, who talk of reprisals which have been threatened within the last forty-eight hours, will understand that if they either shot people or set fire to a village and death ensued, then without having recourse to the Courts which the Lord Chancellor desires to set up, they could be tried by the ordinary law of the land and, if convicted, would be found guilty of murder and no doubt executed. The sooner they realise that the better. It seems pretty certain that this country will be a graveyard to those who invade it. As was suggested by a town councillor on one occasion when he objected to the building of a wall round a cemetery: "Why do that seeing that those who are inside never can get out?" It is pretty clear that those who come into this country now cannot get out. That being so they had better look at and behave according to the laws and customs to which they themselves adhere.
I would add that it does seem to me rather strange, apart from the two points I have raised, that the right of appeal should be so restricted. I did not quite 16 understand from the Lord Chancellor whether there was or was not a right of appeal in cases where a man might be sentenced to penal servitude for life, or whether it was confined to the death penalty, nor do I quite clearly understand on whose motion the appeal should be granted.
§ LORD MOTTISTONE
That clears that up. No doubt the Lord Chancellor will tell us to what classes it is restricted, but generally I think we ought to have an assurance either that the whole war zone system will be abandoned or that it will be explained more fully. Until I can have a definite assurance that the citizens shall be clearly told their duty in one or the other category—soldiers, sailors and all the rest—then I cannot see my way to withdraw my opposition to this Bill. There is another point of controversy which I mentioned to the Home Secretary and to the Lord Chancellor, and to which, I have been informed since I came to this House more than one member desires to draw attention. But I was advised by my noble and learned friend on the Woolsack that to discuss it fully might be inconvenient, if not dangerous, in the public interest.
§ THE LORD CHANCELLOR
May I interrupt my noble and gallant friend, to say that I pointed out that if he was to discuss that matter he would be discussing a document which had been entrusted to him and which was marked "Secret"?
§ LORD MOTTISTONE
Oh no, it has nothing whatever to do with that. The document that was shown to me was shown to me at the War Office by a responsible official concerned. I am sorry if I did not make it quite clear to my noble and learned friend on the Woolsack. The information came to me that there was such a document, and since it has been mentioned it might as well be said that it was something to do with the action of the police. It came to me from my own county, where I was told that the L.D.V. or Home Guards were doubtful as to what they ought to do and were not quite clear what the policemen were going to do. So I went to the War Office and said, "What is all this about?" They showed me the document. When I was told it was a secret document I said 17 I would not discuss it in Parliament. When I saw my noble and learned friend this morning, I told him that I did not propose to discuss it. The matter has been raised, and it was suggested that, if it be thought fit that it should be discussed, it should be discussed by the Home Secretary with myself and perhaps one or two members of this House who are interested in the matter instead of debating it here. I am entirely agreeable to that, but unless some assurance is given that this matter will be reviewed, it would, be dangerous to allow it to rest where it is. I beg to move.
Leave out the word ("now") and at the end of the Motion insert ("this day six months").—(Lord Mottistone).
§ 4.48 p.m.
§ LORD NATHAN
My Lords, my noble friends who sit upon these Benches have asked me to represent to your Lordships their views upon the Bill. As my noble friends have made clear since the outbreak of the war, they are prepared to support the Government in any measure which is calculated to promote the prosecution of the war and is so justified by the Government. This measure is no such measure, since it will neither advance in itself nor retard the prosecution of the war. It is, in my submission to your Lordships, an administrative measure, acceptance or rejection of which should be based purely on the balance of convenience, and in so far as it derogates—as in some respects undoubtedly it does—from existing rights of His Majesty's lieges in regard to the administration of justice, it is clear that your Lordships' House will desire to scrutinise it with a jealous eye.
The noble and learned Viscount on the Woolsack in his illuminating explanation, did not, I think, draw the attention of your Lordships' House to a matter which certainly seems to be worthy of some attention, and that is the difference between the purpose of this Bill as contained in it when originally presented to your Lordships' House and that purpose as defined now. In its original form as presented to the other House on June 10, and presented in the same form to your Lordships' House, its object was stated to be to "extend further the powers which may be exercised by His Majesty under 18 the Emergency Powers (Defence) Act"—to extend further. In the Bill as it is now presented to your Lordships the Bill is entitled "an Act to remove doubts as to the extent of the powers which may be exercised by His Majesty" under the same Act. I think it would be interesting, if I may so invite him, to ask the noble and learned Viscount the Lord Chancellor if, when addressing your Lordships again, he would be so good as to give some explanation of that discrepancy between the Bill as originally presented and the Bill as it stands now.
What are the doubts which this Bill is to resolve? The Bill in some of its aspects is of limited application. For instance, it is limited in point of time. The special Court may only be established and the war zone may only be proclaimed when an invasion is either imminent or recent. The Bill is silent as to the situation whilst the battle is actually in course of being waged, and I desire to ask the noble and learned Viscount this question: whether it is correct to understand that during the period of the actual waging of battle, and in the area in which battle is actually being waged, the rights of a military commander to deal with difficult situations, persons and offences out of hand, shall I say, or by way of drumhead Court Martial, will remain unaffected, or whether that right is in any manner whittled away by the Bill in the form in which it is presented to your Lordships. Your Lordships will understand that I have been careful to avoid the use of the phrase Martial Law or Military Law. I am asking the noble and learned Viscount the Lord Chancellor whether in the circumstances which must be contemplated the rights of a military commander on the spot during the actual course of a battle are affected or unaffected. It seems to me to be vital that these rights should be left unaffected.
The noble Lord, Lord Mottistone, suggested that if these war zones were ever to be proclaimed they should be proclaimed universally throughout the length and breadth of the land and irrespective of the conditions which might prevail in any particular part of the land. I gravely trust that your Lordships will not accede to the view of the noble Lord. The procedure of the Courts built up through centuries, the confidence inspired 19 by the manner in which trials are held, is something which should be, I believe, preserved as long as, and over as wide an area as, is possible. It should only be restricted when stern necessity makes that restriction inevitable. I trust that your Lordships' House will refrain from anything that would extend the operation of these special Courts beyond the area or beyond the time when it is manifestly essential. It is to be observed that this Bill, whilst it will operate to keep civilians out of military courts or Courts Martial—I am not confusing the two kinds of court, but I wish to be sufficiently comprehensive in what I say—does at the same time enable those who are members of His Majesty's Forces to be brought within the purview of the civil Courts, and I do not know what precisely is the object of that provision which would give jurisdiction in these special Courts to the President of the Court over members of His Majesty's Forces, whereas in normal circumstances members of His Majesty's Forces would expect to be under the jurisdiction set up by the relevant Statute. I do not know what is the object of that. It may be an advantage; it may be with the idea of extending the rights which civil Courts have at present of exercising a certain jurisdiction over members of His Majesty's Forces. I ask the question because I should like to know.
There is a case that can be made for the legalisation of Field General Courts Martial in the war zone, or perhaps, more accurately, in the battle zone, but that would result undoubtedly in civilians being brought within the purview of such military courts or Courts Martial in contradistinction to the jurisdiction being exclusively that of civilian Courts. It would be interesting if the noble and learned Viscount the Lord Chancellor would explain to your Lordships' House what view, if any, His Majesty's Government have formed with regard to the functions of Field General Courts Martial.
The noble and learned Viscount on the Woolsack has made it clear that the judicial authority of these Courts will be reposed in a single Judge with assessors, and that there is to be no preliminary investigatory period before a court of 20 subordinate jurisdiction. I should like to know, as a matter arising incidentally out of that statement of the noble and learned Viscount the Lord Chancellor, what is to be the position of the courts of summary jurisdiction as such, not in their capacity, if it be accurately called so, of investigatory or examining courts, courts of preliminary examination, but as courts, within a limited sphere, of final jurisdiction. Then I gathered from the Lord Chancellor that in no wise by this Bill is the Royal Prerogative of mercy affected, but that there will be interposed between the War Zone Court and the Minister advising His Majesty this new Court of Review. The physical circumstances which must be envisaged, and which His Majesty's Government in another connection have envisaged, are such that there may come a point of time when communication between the Central Government, wherever they may be situated, the place where the crime is alleged to have been committed, and the place of trial by the special Court, may be impossible. What will the position be then with regard to review and to the exercise of the Royal Prerogative? Will the functions normally exercised by the Home Secretary vest, as I understand all other powers of the Government vest in such circumstances, in the Civil Commissioner on the spot? If not, what provision will be made for delay, which may be long and indeed almost indefinite?
The Lord Chancellor told us that the Courts will be peripatetic Courts meeting as and where occasion may require. Who is the person responsible for summoning and creating these Courts? Is it, as I understood, the Lord Chancellor? If it is, then what is the position to be if and when the Lord Chancellor, by force of physical circumstances, is unable to communicate with the war zone? Will his functions then vest in the Civil Commissioner, and will it then be the Civil Commissioner who will nominate the President of the special Court? Is it the Civil Commissioner who will designate the assessing justices of the peace? Is it the Civil Commissioner who will appoint the place where the Court is to meet? These are quite practical questions which do not arise on the face of the Bill but which I think it is not out of place for me to bring before the attention of your Lordships.
21 One final question to the Lord Chancellor. He has referred to Regulations which are to be made with regard to this whole matter. Some of those Regulations will doubtless be for the purpose of creating new offences; others will be directed to the procedure of these Courts, both as Courts of First Instance, if I may so put it, and as Courts of Appeal. My noble friends seated upon these Benches are anxious to know whether this House will have the opportunity of seeing and considering those Regulations before it is asked finally to dispose of this Bill. Subject to such an opportunity being given and to these Regulations being acceptable to my noble friends on these Benches, they will support the Bill.
§ 5.5 p.m.
THE MARQUESS OF CREWE
My Lords, my noble friend beside me has moved the rejection of this measure on the Second Reading, and the noble Lord, Lord Nathan, who has just spoken, drew attention to the marked difference which exists between this measure as your Lordships are considering it and the form in which it was originally introduced in another place. I can say at once that had it come here in that form, many of your Lordships would have been disposed to support Lord Mottistone in its rejection, because the measure as then worded would have been thought almost arbitrary and drastic even in Moscow. It has now undoubtedly been very seriously modified, and in the form in which it was laid before the House by my noble and learned friend on the Woolsack I confess I should not be prepared to vote against its Second Reading.
My noble friend Lord Mottistone removed the question into a rather different field, and I did not quite follow his argument. It appeared to me that he was dealing with possible action which might be taken by British citizens against an invading enemy. It had not occurred to me that this measure was intended to touch that side of the business at all. I thought it merely applied to possible offences committed by people resident in this country, whether His Majesty's subjects or others, and in no sense to anything that was done in relation to invasion. That is to say, it had not occurred to me that even if the citizens of this country, as my noble friend described, were guilty of a breach of 22 International Law by shooting prisoners or some other act of the kind, such acts would be considered amenable to these Courts. I have no doubt that the noble and learned Viscount on the Woolsack will make that point altogether clear. I had understood that the cases brought before these Courts would concern offences by people resident in this country against either the Forces or other people resident here. At the same time, I am not clear in my mind about the proclamation of a particular war zone, or how the existence of these zones will work when it comes to offences committed by people who may be moving about the country and may at some time be altogether outside the war zone. However, that is a point on which I do not doubt that the Lord Chancellor will be able to inform us.
On the whole question, I confess that I am one of those who do not see the very urgent necessity for a measure of this kind, and certainly not for the extreme hurry with which it was introduced, and for the way in which it was treated as an emergency measure and as though the emergency existed at this moment, whereas we all know, and we all hope, that it may never come into existence at all. At the same time, I confess that I feel a certain sympathy for His Majesty's Government, because one sees how harshly they have been treated by some sections of public opinion in the matter of the delay and procrastination of which at any rate their predecessors were assumed to have been so uniformly guilty and any kind of imputation of which they desire to escape. From some of the communications which one sees in the Press, it almost seems as though some critics thought that it did not matter very much what was done, so long as it was done quickly, and not much time was spent in thinking about it. That, I think, has accounted for more than one thing. It has accounted, I believe, for the extreme hurry with which this measure was introduced. It probably accounted also for the completely indiscriminate internment of aliens, leaving all inquiry until the unfortunate people interned had undergone in some cases great inconvenience and even a certain amount of privation. But, as I say, His Majesty's Government have stated that this measure is one which in the public interest ought to be passed, and for that 23 reason I should certainly not be one to take the responsibility of refusing to give it a Second Reading.
§ 5.13 p.m.
§ LORD ATKIN
My Lords, I am bound to say that, looking at this Bill and nothing but this Bill, I shared the anxiety which I know has been felt by a great many people interested in the administration of criminal justice at the unlimited powers, without any express safeguards, that are given to the Government in this matter; because I imagine that it is quite without precedent for Parliament to confide to the Executive the power to create new Courts with powers of life and death without there being any provision at all qualifying the nature of the jurisdiction. If your Lordships will look at the Bill, you will find that it is all contained in about twenty words—namely, that persons mayin such circumstances as may be provided by the Regulations, be tried by such special Courts, not being Courts Martial, as may be so provided.Those words do not define where the Courts are to operate, how the Courts are to be constituted, by whom they are to be constituted, what the crimes are which the Courts are to try, at what period of time the acts must have been committed which are to be tried, what the procedure of the trial is, or what possible appeal there is in respect of it.
All that has to be filled up later; and therefore I think that there was a good deal in the suggestion which fell from one noble Lord, and which has been made, I think, by others, that it would have been desirable if Parliament had been placed in possession of the proposed draft Regulations before this Bill was finally passed, so as to give some form and content to the provisions which the Government were actually making. On the other hand, I appreciate very well that in the opinion of the Government, as advised by their military advisers, this is a case where these powers should be placed promptly in the Courts which it is desired to set up, and I see that, if the Regulations are to be subject to discussion, then first of all they have to be prepared—and I do not think that the Lord Chancellor would be in a position to say at the present moment that the Regulations 24 have been finally completed—and afterwards they would be capable of being discussed at very great length. The alternative process has been adopted, which seems to me on the whole to be fair and reasonable—namely, that the responsible Minister of the Crown should, in opening this Bill, both in another place and as was done so clearly here by the Lord Chancellor, state what the proposals were. When we are in possession of those proposals, and we know in substance what they are going to be, I think that we are in a position to discuss them, and we are in almost as good a position as if we had actually seen the Regulations in print. I myself am in the fortunate position of the Lord Chancellor having been kind enough to read to me some of the provisions—I think the more important provisions—which are proposed, and they certainly satisfied me that the ordinary safeguards of justice which we associate with the criminal courts, will in fact be maintained.
There are three matters which, if I had not had the security of knowing that they would be in the Regulations, I should have wished to put in the Bill, because they are absolutely essential to secure justice. One is that the parties should be able to be represented by solicitor or counsel. We are assured that that will be in the Regulations. Another is that the ordinary rules of evidence applicable in the criminal Courts should be applicable in these cases. I am assured by the Lord Chancellor that that is going to be in the Regulations, and I think that he stated that here. The third is that the parties should have the power of compelling witnesses to attend the Courts, the same power which they possess now in an ordinary criminal Court, or indeed at a Court Martial, and that that power should extend—I think that this is very important—to military witnesses, so that the military authorities should not be able to withhold their attendance except on absolutely reasonable grounds. I understand that that also will be secured. With those safeguards in the Regulations, it seems to me quite unnecessary that we should put them into the Bill. I myself am quite satisfied with the assurance which has been given.
Then there is the power of appeal, or rather of review, to which the members of another House attached very great im- 25 portance, and to which your Lordships will no doubt attach great importance. That appears to me to be entirely satisfactory except in one particular, and I would ask the Lord Chancellor to consider this matter. There is a review as of right when a prisoner has been sentenced to death, but there are sentences which are almost as bad as death—very long terms of penal servitude, for life, for ten years, for fourteen years and so forth—and I cannot help thinking that it is rather hard that a man sentenced to penal servitude for life should have no right of review, and indeed that there should be no power of review unless the Judge certifies that there is a difficult question which arises. In my experience of Judges, and of the very best Judges—and perhaps because they are the very best Judges—they are apt to be completely satisfied with the result of a trial once they have decided it, and consequently they do not entertain very much doubt; though I have also found in my experience of the Appellate Courts that Courts of Appeal have very often not agreed with them, however satisfied they may have been in the first instance. I cannot help thinking that it would not cause delay and it would lead to a proper administration of justice and satisfy the wishes of a great many people if, on the application of a person sentenced to a severe penalty, there should be some power of review. For instance, one of the reviewing Judges might have an opportunity of considering whether there is some ground for the application. I cannot help thinking that that would be an advantage.
The only other thing I wish to say is this. It is a small matter, but there is a provision for the Judge to sit with two justices. I cannot understand what they have to do. They have no responsibilities of any sort or kind. The Judge may differ from them, yet he has called to his aid, not assessors in the sense of persons who are skilled in some special knowledge which he is not supposed to possess, but subordinate judges, unprofessional judges, who are not in the least as qualified as he is to form an opinion. I do not know why he should be supposed to attach any importance to their opinion. It is as though a General who had to plan a campaign were obliged before he came to his decision to call to his aid two subalterns in 26 order that he might have the comfort of knowing that there was someone with whom he could discuss the matter. If it is said that it relieves the Judge of responsibility, I would answer that it is a much greater burden put upon him when the two assessors form one opinion and he differs from them. The responsibility then imposed upon the Judge of convicting of a capital offence is obviously much greater than if he had nobody there at all. It seems to me it only weakens the administration of justice, and I cannot imagine a Judge, who is able enough and strong enough, not being able to decide this for himself. I do not understand why he should require the assistance of two untrained justices of the peace sitting with him. But that is a matter of detail, and it can be left for the Government to decide.
I do not quite appreciate the difficulty expressed by my noble and gallant friend (Lord Mottistone), and some of the statements he made are a little dangerous, unless he desires to confine the duties of a citizen to those who become members of His Majesty's Forces. As to men of the Home Guard, there is no question, in view of the Regulations, that they do in fact become completely members of His Majesty's Forces, subject to Military Law. There is no question at all about this, provided the Government will in due course provide them with uniforms.
§ LORD MOTTISTONE
Surely that is wrong. There is nothing in International Law providing for a uniform to be worn, and that should not be stated without being at once countered. A visible emblem, visible from a distance, is what is required by International Law. It has nothing to do with a uniform.
§ LORD ATKIN
I entirely agree, but I am bound to say that I thought that the visible emblem of a soldier at a distance meant a uniform, and I do not believe that an armlet, unless it is an armlet of quite alarming dimensions, would be visible at a distance. But I am talking now of citizens who are allowed to defend themselves against the enemy or to attack the enemy, and I venture to say it would be a great mistake—and I think the mistake would be already made—if members of the public were encouraged to believe that, without belonging to the Home Guard, they could seize their shotguns and shoot down the first parachutist that they 27 saw. They would then be francs-tireurs, and would be so treated, I have no doubt, by the enemy, and would bring themselves and their families into danger. I think it is very important that that matter should be made clear, and I am very glad to have had an opportunity of stating it. However, this is departing from the present Bill. The point I wish to make is that now that we have been told we can rely upon the assurances that have been given as to the provisions that have been made, I think the ordinary safeguards of justice for the administration of these Courts have been provided for. In those circumstances, I think the right course for this House to take is to give this Bill a Second Reading.
§ 5.27 p.m.
My Lords, I had not intended to speak, but I think what has fallen from the noble and learned Lord just now is most dangerous, and I hope the Lord Chancellor will put the matter right. With the greatest respect for the noble and learned Lord, he is playing right into the hands of our mortal enemy. He is claiming, I understand, that the Home Guards are to be treated as francs-tireurs. The Germans are claiming that now in their published wireless statements: they are stating publicly that the Home Guards are francs-tireurs, whether they wear uniform or not.
§ LORD ATKIN
Will the noble Lord forgive me? I said as plainly as I could that if you were to avoid being treated as a franc-tireur you ought to become a member of the Home Guard, for then you are a member of His Majesty's Forces.
With great respect, that is not what the noble and learned Lord said. What he said was that he thought the armlet was not sufficient and there must be a uniform. That is what I take exception to. It is known that over 1,300,000 men have enlisted in the Home Guard, and it is known that they cannot have uniforms, and a visible badge has been given. The Nazis are now saying, "These men are francs-tireurs and we will take reprisals against them if they act against our troops." And what the noble and learned Lord has said, as he will see if he reads the OFFICIAL REPORT to-morrow, lends 28 substance to that. The badge is within International Law, without a uniform—it is a uniform; it is the visible sign which puts us all within International Law. Not that I gather that International Law, either on land or on sea or in the air, is in any way hampering the Germans in the carrying out of what they consider their military policy, and the less that we rely on the Germans respecting International Law the better for ourselves. I do hope that the Lord Chancellor will put this matter right, because what Lord Atkin said, I repeat, is very dangerous indeed. An armlet, a brassard, puts us within the law. As for the man with the shotgun, he ought to belong to the Home Guard, but recruiting for the Home Guard has now been stopped; they cannot deal with any more.
May I put one question to the noble and learned Viscount on the Woolsack, which my noble friends and myself have discussed, and my noble friend Lord Nathan, as a newly enrolled Peer, felt rather too modest to raise himself? The noble Viscount on the Woolsack has the right to say I have not the same modesty. This is a hereditary question, and I claim my hereditary right not to feel modest. I refer to the Privilege of Peers to be tried by their Peers in serious offences—in cases of treason and felony, I think.
What is the position of a Peer under this Bill? What is the position of a Peer who comes before this special Court and who is accused of one of these offences for which he is entitled to be tried by his Peers? I presume the Government have considered that point, and I respectfully ask for a ruling.
§ 5.31 p.m.
§ LORD ROCHE
My Lords, I propose to trouble your Lordships with a few observations expressing my reasons for giving my support to this Bill and also expressing a hope which I trust will receive attention from those responsible for the form of the Bill. As to the first matter, I forbear to follow my noble friends into a discussion of the rights of the Home Guard and the citizen because the first time the matter was mentioned by Lord Mottistone I failed to see any close connection between that topic and 29 the Bill we are now considering. On the matter of law, I confess I incline to the view that my noble friend Lord Atkin is more or less correct in his law, but, speaking for myself, as a practical matter, I propose to adopt the view and attitude of the noble Lord on the Front Opposition Bench, and I propose to take part in any proceedings, although at the risk of being regarded as a franc-tireur, knowing I shall get no worse treatment in that way. The Lord Chancellor can decide in his own discretion how far he may go into the matter, but that is my view for what it is worth as to the connection between that matter and this Bill. The Lord Chancellor has expressed in the clearest language the reasons why self-abnegation to the military Forces of the Crown should be acceded to. Speaking for myself, I have the greatest respect for the combatant Forces of the Crown, but I am happy indeed to think they will not be charged, and do not seek to charge themselves, with the administration of the law in these matters which we are now considering.
I propose to say one word or two as to why it should not be left to the ordinary methods of procedure before magistrates and Judges' Courts of Assize. Some of your Lordships may know that I spent more years than I now care to think—seventeen years—as a Judge of the King's Bench Division administering criminal law, and in the five years since I ceased to exercise that function I have occupied myself as a magistrate in the country, and Chairman of Quarter Sessions in my county, with the administration of criminal law. I share the view of the noble Viscount on the Woolsack that it is an excellent system. I do not say it is perfect, but it is a good system for ordinary circumstances. But it would be most undesirable, if this emergency happens, if what I may compendiously call "war offences" were left to the administration of ordinary justice. Not only is it slow, but an ordinary justice of the peace is a layman. He is often presided over by a good chairman; not always. He is generally advised by a good clerk; not always. He is proceeding upon ordinary lines. He is, as a rule, timid about novelties, and if he is not timid he is sometimes in a panic. The best evidence as to the undesirability of these exceptional offences being 30 dealt with by ordinary tribunals was the result that was seen and had to be dealt with by the executive Government of the very varying sentences inflicted on what I may call over-talkative people. It would be far better that these matters should be left to the sort of court which was adumbrated and sketched by the noble Viscount on the Woolsack. Therefore I say that this Bill, in its main intent and design, is a measure designed for the safety of the country and does not in my view impinge at all on the proper liberty of the subject.
I share the view expressed by Lord Atkin, that he has seen better Bills. So have I; but the explanation was filled in by the noble and learned Viscount on the Woolsack, and we may safely give the Bill a Second Reading. At all events that is my judgment. The last matter is this. I would express the hope that in the Regulations—this properly occurs on the Second Reading, because it would not be a matter for amendment at all—the magistrates' courts may receive the necessary guidance as to where they are to commit cases for trial. I fully understood the noble and learned Viscount on the Woolsack to say that it would be open to the Judge of the Emergency Court to say he was not going to try cases of arson, coining, and so on. But it would be extremely unfortunate if magistrates were left in any doubt that they should commit ordinary cases to the ordinary Courts of the realm. If they made a mistake, as they may well do, on a border-line case, as to where they should commit, I agree that a residual power should be left to the Emergency Court Judge to say, "Take it away, and take it to an ordinary Court." I hope the matter will not be left absolutely bare. Without undertaking the task of somebody else in drafting the Regulations, I suggest there might be at least a statement that it was what I may call, compendiously, war offences or offences of that nature which it was contemplated should be dealt with by the Emergency Courts. These are the observations I desired to make to your Lordships, and I hope this Bill will receive a Second Reading.
§ 5.39 p.m.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I want only to ask one question about this Bill. I do not feel the 31 anxiety that some noble Lords do as to the possible diminution of the rights of the subject under the Bill. On the contrary, as far as I can understand—I dare say I have wholly misunderstood it—it is really a Bill for safeguarding the rights of the subject much more than infringing them. I used to be told—I do not know whether it is still admitted—that Martial Law was the negation of all law; that is, Martial Law quite distinct from Military Law, which is a totally different thing. Martial Law is the right which a General in the field has to safeguard the military operations in which he is engaged, and when the state of things justifies it, to substitute for ordinary law the will of the General commanding in the field. I used to be told that that was Martial Law.
Where you have a thing which is described in this Bill as a war zone—that is to say, a district of the country which is subject to military operations and has been invaded by the enemy, or something of that kind—there you have the condition in which the General is entitled to carry out whatever he thinks is necessary in order to safeguard his troops, and no rules of law operate to prevent him doing so. At least that is what I have always understood, and I do not understand that it is proposed to remove that right. I do not think it would be possible to do so. You must leave that in the hands of the General as a supreme resource. But it is proposed—at least so I understand this Bill—to give an alternative where that alternative can be carried out. Instead of saying to the General, "Now if you are satisfied that the ordinary law does not operate, then you must go to Martial Law and carry out your law," leaving no other alternative, you give the public the alternative that in such a case as that where it is possible to do so, the offence shall be tried by a special tribunal set up by this Bill. That seems to me a very important safeguard for the rights of the public, and in no way an infringement of their existing rights.
I would not have troubled the House with these observations except for this doubt—namely, what is the exact emergency which has induced the Government to produce this Bill? I can see some very great emergencies which they may have had in their view. We all followed the 32 history of the German invasion of France, and we all know the fearful conditions which prevailed quite apart from the battle by reason of the refugees and all the confusion that the invasion caused. I quite agree that that is a thing which the Government are bound to foresee as a possibility, but only as a possibility, because, personally, I have not the slightest belief that an invasion can get as far as that but it might do so, and, if it should, it is a fearful evil which the Government of the day are bound to consider and provide for. I should be glad if the Lord Chancellor can help me about this difficulty—whether the Government really think this kind of measure is going to help to meet a danger of that kind. I dare say it is. It may be the best that can be done, and so far I should be warmly in favour of it, but I do not feel that even a special tribunal would be able to cope with such disasters as occurred in the invasion of France, arising from the refugees and the general confusion which must always take place in consequence of an invasion by an armed force. I do not know if I have made my point clear, and I shall be glad if the Lord Chancellor can help me.
§ 5.43 p.m.
§ THE LORD CHANCELLOR
My Lords, a number of questions have been raised, and I desire briefly to deal with them in reply. May I begin with what has been last said? If I may say so, I think the noble Viscount who has just spoken has very admirably stated the real nature of Martial Law, a subject which is very often misunderstood. Military Law naturally can only apply to those who are subject to it—that is to say, soldiers and sailors and airmen and others under Military Law—but a situation may arise in which the only available power for keeping order and for punishing offenders is a military power. It may be that the ordinary Courts will be shut up, and something then has of necessity to be done, though I should be careful of any phrase just used by the noble Viscount, Lord Cecil, when he spoke of military authorities having the "right" to do this, that and the other. I believe the true view of it is that expressed long ago by a very famous man, a Judge and public man, Sir Mathew Hale, who, in a passage which is very often quoted, said this about Martial Law: 33Touching the business of Martial Law, these things are to be observed: That in truth and reality it is not a law but something indulged rather than allowed as a law; the necessity of government, order and discipline in an Army is that only which can give these laws countenance.That is the reason why, whenever military authorities have exercised their powers against civilians—powers of trial and punishment.—it has always been thought necessary at the end of a war to pass an Act of Indemnity. There was an Act of Indemnity after the Boer War. Subject to that, I would accept entirely what the noble Viscount said.
It really is a case of the application of the principle of necessity. Just as when a number of people are crowded into a hotel and a fire breaks out, the man who is the natural leader and controller has to take charge, throw things out of the window, bundle ladies downstairs, and so on; so in a much larger field, when all other law has gone, you must leave the soldiers to do their best, and I think we all realise that the British military authorities take tremendous trouble to do that as well as they can. If they are to be criticised in cases which I have had occasion to observe, it is that sometimes they are almost too afraid of the technicalities of the law, and take rather too long in coming to a common-sense decision.
The noble Viscount is right when he says the scheme of this Bill is to devise, if we can, what I may call an intermediate buffer. It may not be possible even for a High Court Judge, whether accompanied or not, to perambulate about the field of battle, but presumably, if indeed there was for the moment any-think like an invasion in any corner of this island, a very great sense of strain would be set up in the back areas. One cannot say how far it would go, but there would be such a sense of strain, and it is certain that in such circumstances justices attending petty sessions once a fortnight and a Judge going round three times a year at Assizes would not be at all suitable for dealing with what was happening in such areas. This is an attempt to provide an intermediate method which, it is hoped, will greatly assist the forces of order and give great confidence to the local population that there is no occasion to rush here and there or to lose one's head, or, for example, 34 attempt to break through a guard and run along the roads, and so on. I agree with what was said by the noble Lord, Lord Nathan, just now. It is not possible to say that by such a measure as this one abolishes any duty which may fall on the soldiers, for it will still be necessary to feel that we can turn to them to do the best they can for us in the situation that might arise. Therefore, this is a measure of insurance, a measure to provide for an intermediate position, and it is hoped that by this means we may be able to deal with events occurring in such a position. If we do, we shall, I think, give very great satisfaction, amongst others, to the military authorities, for the very last thing they wish to do is to send off Colonels, Majors and other people to sit in a Court for the purpose of trying civilians. That I think is the answer to that. May I add that there is really nothing surprising in providing that those who are under Military Law should also come before these Courts? It cannot be too clearly understood that a soldier is always subject to the ordinary law of the land. Some of us who have had practical experience of the administration of criminal law have seen the sad sight of a soldier in the dock charged with some dreadful offence by which he has disgraced his uniform.
I am most unwilling to travel outside the proper ambit of the Bill, but in reply to the question as to what is sufficient to justify a citizen in resisting without becoming a franc-tireur, without claiming to be an expert on every corner of International Law I have always understood that provided he belonged to an organised military body, provided he was under orders and was therefore disciplined and provided there was something about him which made him distinctive as a member of that body—uniform is best, but if not uniform, then some other distinctive emblem by which he can be identified at a distance—then beyond any question he is entitled to all the privileges, as certainly he has all the responsibilities, of a soldier.
My noble friend Lord Nathan pointed out quite truly that the Bill as now presented is described as a Bill to remove doubts, whereas originally it bore a different title. As to that I would say that, strictly speaking, there is no reason for the Government to introduce this Bill at all, because they could do the whole thing 35 by getting an Order in Council and springing it on everybody after it had been done. But the view which the Government took was that, when dealing with the rights and liberties of ordinary citizens, it would be a very monstrous thing to use that power without ever bringing it before the attention of Parliament. This Bill is really intended as much for the purpose of getting Parliamentary approval as for filling any gap which previously existed. The noble Lord also pointed out that this Bill was to operate when there had been recent or when there was immediately apprehended danger and asked whether between those two points the Bill would not apply. I am confident that the Courts could not operate in the field of battle. The only reason for those two phrases is that in order to create a war zone you want to have one or other of two reasons for doing it—either that there have been in that neighbourhood events of grave emergency or else that they are very shortly apprehended. There might be an air attack which did so much damage that it was really almost impossible to carry through the ordinary proceedings of the law and you would want the special Courts for dealing with looting, or, while nothing had yet happened in a district, what had happened elsewhere was of such a character as to make the creation of these Courts desirable, and desirable at once.
The noble Lord asked a question about courts of summary jurisdiction. I quite agree that it is a very important point, although it is one rather of detail. It is very necessary that the justices of the peace, discharging their ordinary work as unpaid magistrates—and I do not speak at all slightingly of that work which is done with very great devotion to duty and with great sense of fairness—must know what they will have to do. If they committed a case to the ordinary Courts when there had been created a war zone, complications might arise. There must be a detailed scheme with necessary instructions to the justices of the peace so that each case shall be dealt with in the most expeditious manner. To give an example, it would be ridiculous if the justices of the peace were not to exercise their ordinary jurisdiction in such a case as that of a person summoned for riding a bicycle without a light. You do not want an Emergency Court, staffed with 36 a High Court Judge, to deal with that. Therefore some kind of machinery must be devised.
Then I was asked a question about the exercise of the Prerogative. I do not contemplate that the Prerogative should be, as it were, farmed out. It is, I think, one of the gravest and most trying duties that can rest upon anybody who is Secretary of State for Home Affairs. Others of your Lordships know that as well as myself. If it was found really necessary we might have to make a new Defence Regulation, but I think we ought to hang on as long as we can to the principle that the Prerogative which belongs to the Crown should be exercised on the advice of the Minister responsible to Parliament and not anyone else. I was also asked who would decide where the Courts should sit, and it was suggested that it might be decided by me. I do not think that ought to be the duty of the Lord Chancellor. I think that when he has appointed a President of the Court for a particular area, that duty should rest on the President. He will be in the area and he will get information and will be able by telegraph or telephone to arrange that the Court shall sit at a certain place with the advisers or assessors.
I am greatly obliged to my noble and learned friend Lord Atkin, all the more so because before he was good enough to bless the Bill, or to advise that it be given a Second Reading, he put some points of difficulty which he had been good enough to mention to me beforehand. I appreciate very fully the objection to having a Bill of only a few phrases and then padding it out with Regulations occupying pages and pages of print. If it had been a practical possibility I would far sooner have had a longer Bill which would have gone into many of these things, though I think some of them are not very suitable for detailed discussion in Parliament. But really there was no other course. The noble Marquess on the Liberal Benches ended his speech by saying he wondered whether this was not a case of the Government being in too much of a hurry. I do not think anybody can really say that this is done in too much of a hurry, because nobody knows exactly when an emergency is going to take place. If we are going to do it at all, it would be much better to get Judges appointed, procedure fixed, and all the 37 necessary arrangements made in advance. It is impossible to improvise in a matter of this sort when we are actually in the very centre of our anxiety and emergency.
My noble and learned friend Lord Atkin suggested that it might be better to enlarge the right of appeal from the case of a man sentenced to death to the case of a man who had received some long sentence of imprisonment. I quite see the force of what he said. It may be that the easy case is the case of the heavy sentence and the difficult case the one not so heavily punished. I will communicate with my right honourable friend the Home Secretary, before the Regulations are settled, so that this point may be carefully considered because I see that it may have a considerable bearing on the matter.
I hope the noble Lord will not persist in dividing the House against the Bill: I should hate to find myself in a minority! His observations did not appear to me for the most part to deal with the Bill at all. He raised two distinct topics, either of which might be discussed separately. One is the question of what particular laws about crime you are going to have in the country; the other is what particular tribunals are going to try the question whether a man is guilty of a particular crime. Those two things have little or nothing to do with one another. These Courts will of course apply the criminal law of this country, whether Statute Law or Common Law; and that is the end of it. I did not quite understand whether my noble friend disliked these special Courts so much that he did not want any to be set up at all, or whether his view is that the right thing to do is to set them up all at once all over the country. I hope that we may avoid either conclusion, and arrange for them to be set up in quarters where they are necessary.
My Lords, this is an experiment. Under the difficulties of some future crisis, it may well be found not to work quite as smoothly as we thought. I do not put it forward as a scheme that can be proved to work with absolute certainty and smoothness; all I do is to put it before you on behalf of the Government as the result of a great deal of consideration by a great many people. It undoubtedly offers a possibility of securing 38 those results which I mentioned before and which Lord Cecil also mentioned. It is a Bill for protecting civilian rights in times of great crisis, and while I for one will always believe that military officers who try civilians do their very best to do justice, I still think they are not the people who ought to be called upon to do that duty. I trust the future may so unfold that it will not be necessary to put that duty upon them. If in fact it is not necessary to use this legislation in practice at all, then to the end of time it will remain uncertain whether these proposals were such as to be accepted or rejected.
§ THE LORD CHANCELLOR
I beg the noble Lord's pardon; I had every intention of doing so. The noble Lord asked a very interesting question; I remember he asked it once before, but at that moment I had not any particular material; I have now sent for some. I do not feel any doubt that the Privilege of Peers is quite unaffected by this proposal. Perhaps it may be of some interest—I trust only in the theoretic view—if I tell your Lordships what the Privilege is. A person entitled to the Privilege of Peerage, if indicted for misdemeanour, is tried in the same manner as a commoner. There is no privilege there. But persons entitled to such Privilege cannot be tried like commoners for treason, felony, or misprision of either offence, and it would seem that there is no power to waive the Privilege. Your Lordships are therefore not able, by an act of self-abnegation, to get rid of that advantage! If Parliament be sitting, the indictment is tried before the House of Lords as the Court of the King in Parliament, and if Parliament be not sitting, it is tried in the Court of the Lord High Steward, which is constituted by special Commission. The Privilege of Peerage belongs to every Peer except an Irish Peer who is a Member of the House of Commons, to Peeresses in their own right, to the wives of Peers, and to the widows of Peers who are not married to commoners; but it does not belong to Archbishops or Bishops, who are Lords of Parliament but not Peers.
§ LORD MOTTISTONE
My Lords, I do not unduly mind being in a minority. I have been in a minority too often, and very often with the noble Viscount on the 39 Woolsack, and we were always right. But in this matter, particularly as he made such a clear statement of the law, which I trust may be now communicated to all concerned—which is one of the things I wanted—and as I gather that the noble Viscount and the Home Secretary will consult on how to deal with other difficulties which I did not want to raise in public—on that understanding, in order to avoid troubling the House with a Division, I beg leave to withdraw my Amendment.
§ THE LORD CHANCELLOR
What I suggested was that, if the noble Lord felt difficulty on matters which he did not desire to raise for public discussion, it would be better for him to seek an opportunity of talking to the Home Secretary. I did not give any promise.
§ LORD MOTTISTONE
I did not say that there had been any promise, but I cannot withdraw my opposition to this Bill unless some such promise is given.
§ Amendment, by leave, withdrawn.40
§ On Question, Bill read 2ª, and committed to a Committee of the Whole House.