TREACHERY BILL. (Hansard, 23 May 1940)

§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, I beg to move that this Bill be now read a second time. As your Lordships have heard, the Bill has just reached us from another place and being a Bill of great urgency as well as of great importance, it was, I understand, passed through all its stages in the House of Commons yesterday. The noble Viscount, the Leader of the House, has secured the necessary suspension of the Standing Order and I must ask your Lordships to be good enough to treat the Bill in this House as a matter of extreme urgency so that it may be put upon the Statute Book with the assent of His Majesty before the day closes. As your Lordships know, the offence of treason is the greatest of all offences against the safety of the State and the law of treason is one of very great antiquity. It was part of the law of this country, undoubtedly, before any Statute about it was ever passed and under the Common Law the crime acquired very comprehensive width. In the reign of Edward III the famous Statute of Treason was passed which defined more precisely the limits of the crime, and perhaps your Lordships will allow me to remind you that under the Statute of Edward III the offence of high treason is committed if anyone should slay the Chancellor or the Treasurer in the course of discharging his duties. Subsequent Treason Acts provided special procedure and formalities, not I think very suitable for the times in which we are now living, and it was under the procedure framed in the Statute of Edward III—the Treason Act of 1351—that the last case of high treason was tried in this country twenty-four years ago, in the time of the last war.
What then is the urgency of the Treachery Bill? It is this. When, at the beginning of this war, the Emergency Powers (Defence) Bill was carried through Parliament, that Bill contained no provision enabling the death penalty to be imposed for acts done in breach of the Defence Regulations with intent to assist the enemy. The reason for that perhaps strange omission was that it was thought at the time that the most serious kind of treasonable offence for which the death penalty would be appropriate could best be left to be dealt with under the Treason Acts to which I have just referred. On reflection it has, I think, become plain 393 that that was not the wisest course to take. Further consideration has shown that, if we rely upon the Treason Act—the main Act, as I have said, is an Act of great antiquity—and other Acts which establish special procedure and special formalities, we shall have a much more complicated and cumbrous procedure than may, in existing circumstances, be justified.
There is also this further point. The law of treason in this country applies, of course, to every British subject wherever that British subject is living, because every British subject owes allegiance to the King. The law of treason also applies to aliens in so far as they owe to the King local allegiance—that is to say, as long as they are resident in this country and enjoying the protection of its laws. It is a very doubtful question indeed whether under the existing law of treason you could proceed against an alien who has come here suddenly, surreptitiously by air or otherwise, for the purposes of wreaking clandestine destruction or doing other acts against the safety of the real. In as much as treason is a crime committed by someone who owes allegiance, it might be well argued that such a person does not owe allegiance to the British Crown. For these reasons it is urgently necessary that this Bill should be passed.
Clause 1 of the Bill, to which I would direct the special attention of your Lordships, provides that If, with intent to help the enemy, any person does, or attempts or conspires with any other person to do, any act which is designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty's Forces, or to endanger life, he shall be guilty of felony and shall on conviction suffer death. That is the main clause of the Bill. There are one or two other provisions which I must ask your Lordships to observe.
In the first place, in Clause 2 provision is made which will greatly simplify the procedure. As I have said, if we rely on the old Treason Acts a special and elaborate procedure is required which I can assure your Lordships is really not required in the interests of justice or fair play. It is a relic from extremely ancient times, taking us right back to the fourteenth century. We therefore wish to provide a simple procedure which ordinarily operates on trial by indictment, and 394 there is a further provision in Clause 2 (1) (b), at the top of page 2 of the printed Bill, that— any enemy alien may, if the Attorney-General so directs, be prosecuted for an offence against this Act before a Court Martial. Your Lordships will observe that that provision is limited—and I think rightly limited—to enemy aliens. Of course, if anyone who is subject to British military law commits an offence of any character, whether less grave than that of treason itself, the fact will expose him to punishment and trial by Court Martial, but this provision is required in order that any enemy alien may be so dealt with if the Attorney-General so directs. In subsection (1) (c) of the same clause, there is a provision to which I would also call your Lordships' attention, that if a person who is convicted under this Bill and sentenced to death by the ordinary procedure of indictment is a member of the armed forces of the Crown, or of the armed forces of any foreign Power, then the Secretary of State may direct that he may be dealt with in the like manner as a person whose execution takes place by shooting if he has been tried by Court Martial. If an individual is convicted under this Bill by ordinary indictment although he is a soldier and entitled to be treated as a soldier, in a proper case the Secretary of State might direct that his execution should be by shooting instead of by hanging. Lastly, fresh legislation is needed because it is thought necessary to make quite clear that enemy aliens can be tried by Court Martial even though they are not subject to the Naval Discipline Act, to military law or to the Air Force Act, and they can be dealt with summarily by that means.
I have only one other observation to make. Some of your Lordships may feel, when you examine the terms of this Bill, that even now we have not provided a procedure which is sufficiently summary in view of the most grave situation in which we stand. I would therefore wish to point out that this Bill will provide adequate procedure as long as—and I trust it may always be so—the ordinary administration of the law of the land, Common Law and Statute, can be carried out. If, indeed, we had to deal with a situation in which there were some descent in a corner of this country, an attempted invasion in some part of the Kingdom, 395 then I do not say that this Bill would contain the whole of the necessary measures. The well-known proposition Inter arma silent leges has this application and meaning, and if a situation ever arose in any corner of the Kingdom where the ordinary law of the land as Parliament lays it down could not be administered, then there is unquestionable authority in those who are responsible for maintaining the public safety to take, if necessary, very summary measures. Your Lordships will not wish me, I think, to detain you longer. I hope I have satisfied you that this Bill is not only of great importance in view of the situation, but of great gravity, and that the time has come when the whole House will concur in this strengthening of the law relating to these offences which expose us to such dreadful peril.

§ LORD ADDISON
My Lords, I should like to ask the noble and learned Viscount one or two questions—not in the least with any desire to criticise the Bill, for we all share his anxiety that it shall become law. He might, however, give us some light upon one important question. In Clause 2 (2), at the bottom of page 2, it is provided that a person may be arrested notwithstanding that the consent of the Attorney-General has not been obtained. I know of a recent case where an officer was arrested and held in solitary confinement for five weeks, and then was tried by Court Martial and found innocent of the charges on which he had been arrested. I am sure that none of us wants that to happen. I would ask the noble and learned Viscount whether there is any limit to the time during which a person may be held in custody before the consent of the Attorney-General is obtained. As far as this clause goes, a person might be held in custody for months.
One other point is that paragraph (b), which the noble and learned Viscount has explained is limited to enemy aliens. If the horrible treachery of which we read in other countries were imitated here, it might not be limited to enemy aliens but might be committed by aliens of other nationalities. I wonder whether the definition of "enemy alien" on page 4 396 would include, for example, an Austrian or a Czech. I cannot see why, in the grave condition of the country and considering the perils to which we may be exposed by this kind of action, it is necessary to put in the word "enemy."
A formal point which affects your Lordships—though I am sure it is unimaginable that any of us should be subject to it—is this. I understand that if a member of this House is charged with felony, he is tried by his Peers. Will the noble Viscount tell us whether this right of a member of this House is in any way affected by this Bill? There was a case, I believe, a few years ago in which a noble Lord was charged with felony——

LORD STRABOLGI
Manslaughter.

§ LORD ADDISON
And was tried by this House. I do not regard it as of any consequence, but it would be interesting to know.

§ LORD JESSEL
My Lords, might I ask a question on Clause 1, page 1, which says "or to endanger life" What exactly does that mean?

§ THE LORD CHANCELLOR
My Lords, I will do my best to reply to the questions addressed to me by the two noble Lords. In regard to the question just put by my noble friend: I should suppose that, beyond question, "life" meant human life. The clause refers to acts of sabotage of a dangerous kind which perhaps could not be proved to be "designed or likely to give assistance to the naval, military or air operations of the enemy" or to impede our own operations, but are none the less done with intent to help the enemy—for instance, by blowing up a building, blocking a road or something of that kind. Of course it would be only in such instances that the clause would apply, and that is undoubtedly what it is intended to express.
Dealing with the two questions put by the noble Lord on the Bench opposite, I think that if for the moment I might ask his attention to the first words of Clause 1, he will see that one of the two questions he asked is thus by inference dealt with. This Bill is not limited to punishing treachery perpetrated by enemy aliens—not at all. It covers every case of treachery if with intent to help the enemy any person attempts it.

§ LORD ADDISON
If I might interrupt the noble and learned Viscount: the point of Clause 2 (2) as I understand it is that such persons should be tried by Court Martial, and I was asking why the paragraph mentions, enemy aliens.

§ THE LORD CHANCELLOR
I think the reason is that a Court Martial in this country would of course normally be applied to our own citizens who are under military law—soldiers, sailors and airmen. That is the natural ambit and jurisdiction of the Court Martial. It is right, in a case where you are at war with another country, that you should deal with the enemy alien with the same swiftness and by the same procedure. As your Lordships know, in the last war there were, if I remember aright, something like ten cases where persons who were enemy aliens were convicted by Court Martial and in due course were shot. If, however, you attempt to apply the procedure of Court Martial to aliens who are not enemy aliens, you will see at once how very difficult it is to draw the line. Unquestionably we can all think of countries friendly to us, great communities who have inherited the British law, who would feel it a very gross infliction that because one of their citizens was suspected he should not be tried in the ordinary course of law but should be forced to go before a Court Martial. It is for this reason that it is enemy aliens who may be brought before Courts Martial.
The other question put by the noble Lord had to do with the proviso at the end of Clause 2, subsection (2). He asked whether there was not a danger that an individual might be arrested or detained in custody and then that a considerable time would elapse before he was brought to trial. The House will appreciate, of course, the purpose of this subsection. In order that frivolous or ill-founded prosecutions should not be instituted under this very grave Bill, there is a provision that there shall be no prosecution, apart from Court Martial proceedings, unless the Attorney-General authorises it. It is important, however, to secure that if a man is suspected it shall not be necessary to wait until the Attorney-General has given permission before he can be arrested. It must therefore be provided that although he cannot be prosecuted until the Attorney-General gives his assent, his arrest, or the execution of the warrant for his arrest, may 398 take place beforehand. I agree most warmly with the noble Lord when he expresses his concern that there should not be any improper delay. I feel quite certain that the Attorney-General and the authorities will concur in that view; and indeed in the circumstances in which we stand there is no reason why there should be delay, because, of course, there is power in the Home Secretary to intern persons who are suspected, without making an allegation against them. If they are to be brought to trial, undoubtedly they ought to be brought to trial with reasonable promptitude. I hope that that will satisfy the noble Lord.

LORD STRABOLGI
Would my noble and learned friend permit me to repeat the question put by my noble friend Lord Addison, as to the position of Peers—and, I may add, Peers in all parts of the House?

§ THE LORD CHANCELLOR
I was interested to hear that question raised, although I appreciate that it has been raised in the purely theoretic sense! I do not think that there is anything in this Bill which impinges on the undoubted rights and privileges of the members of your Lordships' House. If the matter became a more serious one, perhaps some more expeditious method might be devised; but as far as this Bill is concerned, I think your Lordships may be assured that your ancient privileges have-in no way been invaded.