ALLIED POWERS (MARITIME COURTS) BILL. (Hansard, 21 May 1941)

§ THE LORD CHANCELLOR (VISCOUNT SIMON)

My Lords, I now move that this Bill be read a second time. This is a measure of considerable importance, of much novelty, of great urgency, and, I may add, of not inconsiderable interest, but, having regard to the aspect of your Lordships' House at the moment, I think I may safely assume that the great majority of the members of this House are well content that the Bill may be carried through without challenge, or, I hope, amendment. I will certainly not inflict upon those of your Lordships who have been so good, from a sense of duty or Parliamentary interest, to remain, any very long explanation, but it is right to put on record in the clearest terms in this House what the Bill seeks to do.

It is a Bill the like of which I do not think could be found hitherto on our Statute Book. It is a Bill to authorise the Allied Governments who are now finding refuge in this country and who possess Mercantile Marines to set up inside our own borders their own Maritime Courts, staffed by their own Judges. These Courts will have jurisdiction to deal with certain maritime offences—in brief, offences committed by any person on board a merchant ship of that Power, though it may be a quite serious crime; secondly, offences committed by the master and the members of the crew of a merchant ship of that Power in contravention of the merchant shipping law of that Power; and, thirdly, offences committed by a person who is a national of that Power and a seafaring person in contravention of the Mercantile Marine conscription law of that country. Your Lord ships will observe, therefore, that the general subject matter is merchant ships belonging to one or other of the Allied Powers. There are, I am informed, something like 6,000,000 tons of such ships dead weight that might be affected by this Bill, and the officers and men who might man these ships, many of whom are now serving, are men who will number not less than 30,000. Your Lordships will, therefore, see that it is a matter of very considerable importance to give the Allied Powers in this country this jurisdiction, because it will help them to do what they are so willing 287 and anxious to do, take their full part in the Battle of the Atlantic.

But, of course, the whole idea is exceedingly novel. The idea that we should allow a foreign Power, however friendly, to set up its own law courts in our own country, and pronounce sentence against persons brought before such Courts, is certainly rather in conflict with our ordinary ideas. It is entirely, however, in accordance with the line of policy which Parliament has followed in reference to these Allied Powers throughout, and for very good reason. For example, Parliament passed the Allied Forces Act in order to authorise these Governments to discipline and administer their Allied Forces in this country. We passed the other day—I forget the exact title—an Act which conferred, in effect, diplomatic privileges in this country upon the members of those Allied Governments here and thereby secured to them a proper status. I do not doubt that all thoughtful persons will see the necessity of this legislation, which is earnestly desired by the Allied Governments concerned, and which, as I have said, will undoubtedly be very helpful to them in discharging the part which they wish to take, and ought to take, in the defence of liberty.

Two or three questions will occur to any of your Lordships who think of this matter as I present it now. The first question perhaps would be: But does the Bill enable these Allied Courts to deal with British subjects? The answer is "No." That is expressly provided against in Clause 2 of this measure. No British subject will ever be dealt with by these Courts at all. The next question is: How is it to be determined in case of dispute whether an individual is or is not a British subject, because you may have an individual who is at once a British subject and also a national of one of the Allied Powers? The answer is that the Bill contains machinery by which, in any case of challenge and doubt, the question whether an individual is a British subject and therefore outside the Bill shall be determined by a local tribunal as described in the Bill. That can be done before the alleged British subject, the soi-disant British subject, is brought before the Allied Court at all.

Then the question may occur that there may be some ignorant men who do not 288 study the reports of the debates in the House of Lords with that fullness which is proper. Will they all necessarily know that they have this privilege? The answer is that they will not necessarily know, and therefore, when any process is served upon them summoning them to appear before an Allied Court, they are to be informed on the face of the notice that if they claim to be British subjects they are not under the jurisdiction of the Court, and if they want the matter determined that is the procedure by which to do it. Therefore I think we have safeguarded the British subject.

The next question relates to procedure. The machinery connected with a Court is quite as important as the Court itself. It is a commonplace to those who understand our constitutional liberties, that they depend quite as much upon the efficiency of our machinery as upon any abstract pronouncement. While some continental nations proclaim the rights of man, the British Parliament passes the Habeas Corpus Act, which is far more effective than any amount of general proclamation. Then there is the question how anybody can be brought before these Courts. It would be intolerable, of course, that the emissaries of even the most friendly Allied Power should be allowed to go about the country and summon, or it may be arrest, somebody inside our borders and hale him before a tribunal. That, therefore, must be done through the ordinary machinery of a British justice of the peace. To him there will be application for a summons, or in case of need a warrant, and he will act as he does in any criminal charge. He will grant a summons or a warrant and the individual will be brought before the Court.

Equally important is the question of what happens at the other end of the business. The Court staffed by the Allied Judge or Judges with the accused person before it—all doubt of his being a British subject having been cleared away—may if it finds him guilty proceed to sentence him, and no doubt will. It is one thing to sentence a man and another thing to carry out the sentence. Who is to carry out the sentence? The only persons authorised to carry out the sentence would be our British officials. The only sentences which under the Bill can 289 be thus carried out are sentences of detention—imprisonment, in ordinary language—and sentences of fine. If the sentence is one of imprisonment, then it will be in a British prison and under the custody of a British gaoler that the offending individual will be detained. Arrangements have been made—very good arrangements—outside the terms of the Bill, to secure that there will be proper consideration of the question of the application of mercy or of the power of passing a man to the service of the Mercantile Marine of this country if, which may very well happen, a little reflection causes him to repent.

Those are the principal matters which arise, but perhaps I might mention two more. What will happen if one of these Allied Courts exceeds its jurisdiction? When we give certain powers to a Court under the law of our land it may perhaps in some cases exceed the jurisdiction given. There is provision by which if there is a challenge that matter can be determined by our own High Court,, which will have before it the necessary material and be able to say whether the jurisdiction has been exceeded. If it decides that it has been, the whole proceedings will be null and void.

Then there comes a question of much constitutional interest on which there was discussion in another place, and as to which I am glad a limiting provision has been inserted by the Commons. Are we contemplating that these Allied Courts will be able in any case to deal with offences that have already been committed, or should their jurisdiction extend only to offences committed in the future? So far as dicipline on board ship and that sort of thing is concerned, I apprehend that we shall generally agree that the jurisdiction ought to be only from the time the Bill passes. Everybody in this country who understands the nature of civilised law looks with the greatest concern on retrospective legislation, especially in criminal matters. But there is this to be said. If, say, the Netherlands Government were established in Holland with their recognised. Criminal Courts there, they would. be at this moment dealing with such cases as were brought before them, cases, it may be, of crime committed within the last few months. We are 290 not setting up a new jurisdiction. We are making arrangements by which the old jurisdiction of the Netherlands Court, which they ought to exercise but cannot for practical reasons exercise in the Netherlands capital, may be exercised in this country. We are merely making what I think is called living room—lebensraum— for the Allied Maritime Criminal Courts.

Therefore there is this provision inserted by the Commons in the Bill, and I call attention to it because it is not in the text of the Bill which has been circulated to your Lordships: Provided that the Maritime Courts of any Power shall not have jurisdiction to try any person for any act or omission committed before the date of the passing of this Act except an act or omission committed at any time not more than six months before that date and constituting an offence against some law of that Power in force at that time other than the merchant shipping law and Mercantile Marine conscription law thereof. I think your Lordships will agree that this is a very interesting Bill. Nothing of the kind has ever been done in this country, with the possible exception of ancient controversies with the highest spiritual power. It is not only an interesting Bill but it is very characteristic of the way in which a really democratic country like our own does things. Contrast it with the way in which Hitler would do it. If in some foreign country there was a question of getting people to serve in the Mercantile Marine, or of punishing people because they failed to observe the local law, I doubt whether he would think it necessary to set up foreign courts and to recognise to the full the rights and jurisdiction of the country he absorbed. There is a totalitarian way which I dare say is simpler and certainly shorter, but not so good. We are applying the British principle in very exceptional circumstances, and thereby showing that we recognise the independence and authority of these Allies of ours who I trust one day will rejoice with us in united victory. I beg to move that the Bill be read a second time.