§ Order of the Day for the Second Reading read.60
§ THE LORD CHANCELLOR
My Lords, the Motion which you have just passed suspending the Standing Order was required in order that this Bill, the United States of America (Visiting Forces) Bill, may be passed by this House with the greatest possible expedition. It was introduced, I may remind your Lordships, in the House yesterday. If it should meet with the support of the House and be carried to-day, it will then be possible for the other House to deal with it in time—if the other House so wills—to secure that it passes into law in the course of the next series of sittings. The effect of this Bill is to give statutory force to an arrangement which has been made between the Government of the United States and His Majesty's Government—an arrangement which is conveniently set out in the Schedule to the Bill. The Schedule is not a part of the Bill which would be open to amendment. It is in the nature of an exhibit. It is convenient to have it included in order that everybody who examines the measure may at once see upon what it is based. If any of your Lordships who have the Bill in your hands will turn to the Schedule you will see that it contains an exchange of Notes between the Foreign Secretary in this country and Mr. Winant, the Ambassador of the United States, on behalf of his Government.
I think that the most convenient way to approach the matter—and I shall not occupy your Lordships for more than a very short time—is to remind oneself that in the Great War, a quarter of a century ago, there was an agreement between the Government of this country and the Government of the French Republic under which criminal jurisdiction over members of our Forces in respect of offences they committed, or might commit, in France, was given exclusively to the British Military Courts, and the French Criminal Courts abstained from exercising any jurisdiction over our soldiers for offences in France. Now that is the general nature of the arrangement which we are now making with the United States Government in respect of members of the United States Forces in this country, including Northern Ireland. We know—and it gives us great satisfaction—that the number of United States troops crossing the Atlantic and for the time being within our country is very considerable and is rapidly increasing; and it is a matter of great importance 61 that we should at once regulate the questions which might arise, even in the best conducted Army, if some member of the American Forces so acted as to offend against the Criminal Law within our own borders. Apart from this legislation, there can be no doubt that in any such case there would be jurisdiction in the British Courts.
In view of the common source of the law in this country and in the United States of America, and in view of the similarity, both in content and in method, which exists between the Criminal Laws of the two countries, I must say that it seems to me very natural that the United States Government should ask to be left with the duty of administering punishment in the case of offences committed by members of their own Forces while stationed in this country. Moreover, as I have reminded the House, it is in strict analogy with the arrangements which we made with the French a quarter of a century ago. Such an arrangement should, at least in principle, be reciprocal, and I shall call your Lordships' attention to a paragraph in Mr. Eden's Note which deals with that matter.
Having, as I hope, clearly explained to your Lordships the general object of this Bill, I should like briefly to call attention to some of the paragraphs in the Note of our Foreign Secretary; which appears on pages 4, 5 and 6 of the Bill, so that you may be satisfied that at any rate the main questions which might arise under this admittedly unusual arrangement have not been overlooked, but that, on the contrary, provision has been made for them. If your Lordships will be good enough to look first at the reply by Mr. Winant, on pages 6 and 7 of the Bill, you will see that he is authorized to accept, and does accept, the proposals and understandings contained in Mr. Eden's Note, without any qualification at all and he adds:In order to avoid all doubt, I wish to point out that the Military and Naval authorities will assume the responsibility to try and on conviction to punish all offences which members of the American Forces may be alleged on sufficient evidence to have committed in the United Kingdom.We may therefore look at Mr. Eden's Note realizing that it is not merely a proposal, but contains the terms of the agreement actually reached.
I will first refer to paragraph 4, at the bottom of page 4 of the Bill, and I will, if 62 I may, read the passage to which I wish to call attention, because it is possible that some of your Lordships may not have a copy before you. Paragraph 4 reads:In the first place, the readiness of His Majesty's Government in the United Kingdom to agree to the exercise by United States Service Courts of exclusive jurisdiction in respect of offences by members of their Forces is based upon the assumption that the United States Service authorities and Courts concerned will be able and willing to try and, on conviction, to punish all criminal offences which members of the United States Forces may be alleged on sufficient evidence to have committed in the United Kingdom, and that the United States authorities are agreeable in principle to investigate and deal with appropriately any alleged criminal offences committed by members of the United States Forces in the United Kingdom which may be brought to their notice by the competent British authorities, or which the American authorities may find to have taken place.I would now call attention to the next paragraph, paragraph 5:Secondly, His Majesty's Government will be glad if Your Excellency will confirm their understanding that the trial of any member of the United States Forces for an offence against a member of the civilian population would be in open Court (except where security consideration forbade this) and would be arranged to take place promptly in the United Kingdom and within a reasonable distance from the spot where the offence wits alleged to have been committed, so that witnesses should not be required to travel great distances to attend the hearing.In the next paragraph, paragraph 6, your Lordships may notice a reference to December 7, 1941, and may possibly speculate as to the significance of that date. That is the date on which the United States of America came into the war.
I shall not read paragraph 7 at length, because it is a long one, but it is the one which stipulates that it should be recognized in principle that an arrangement of this sort is capable of reciprocity. Although it may not seem very probable in present circumstances that large numbers of British soldiers, sailors or airmen should be inside the United States, and although the existing arrangements are, I think, satisfactory, nevertheless in paragraph 7 we ask that it should be recognised thatthe Government of the United States of America will be ready to take all steps in their power to ensure to the British Forces concerned a position corresponding to that of American Forces in the United Kingdomand so forth. I do not seek to press the application of reciprocity at the moment, 63 but I think it is right, if we surrender by this Bill, as we do, our jurisdiction, that we should make it clear that we expect in this matter reciprocal treatment in case of need. To all that our American friends have most willingly agreed.
Paragraph 8 deals with machinery. Perhaps I may be allowed to speak for a moment as a lawyer, and to say that as a matter of fact the machinery of the law, the practical way in which it is carried out, is, at any rate to our notion, and also to the notion which obtains in America, as important as the substance of the law. You may have the most magnificent laws denouncing all sorts of misdeeds, but unless you have a machine which will apply that law successfully, your general propositions will give you very little indeed. We have been at great pains, therefore, to secure that the necessary machinery will be provided, and that is dealt with in paragraph 8. Let me tell your Lordships what the suggested machinery is. From time to time it may need some overhauling, but a great deal of trouble has been taken by both sides to get it into proper shape, so that it can start at once, as it obviously ought to do, if we are going to authorize this legislation at all.
Most important in the British system is the British policeman. I think we should be very slow to admit that anybody could be usefully substituted for him in respect of the functions which he performs. If I may adopt a line from The Pirates of Penzance—When constabulary duty's to be done, To be done,the British policeman will continue to do his duty in this connexion, and it is he who will be concerned in case of need in detaining or arresting a suspected person. If your Lordships will turn to the body of the Bill, to the first words of Clause 1 (2), you will see we have provided that:The foregoing subsection shall not affect any powers of arrest, search, entry, or custody, exercisable under British law with respect of offences committed or believed to have been committed against that law,and so on. Therefore, if you take what is ordinarily called a criminal offence and if the case were to arise where an American soldier stationed in this island was suspected of having committed it, the British policeman would retain his 64 right and his duty in proper circumstances to arrest and to detain. But it is at that point that we depart from our ordinary procedure.
Apart from this Bill, whatever the nationality of the person upon whom the policeman lays hands on such a charge, he would, of course, take steps with as little delay as possible to bring him before a court of summary jurisdiction—before the magistrates; and the magistrates would consider whether the evidence made a case. They would either deal with it summarily, if that was the proper way to deal with it, or they would commit the case to the Quarter Sessions or Assizes for trial. Under this scheme, while the policeman will conduct his duties with his ordinary faithfulness and discretion—and I have always heard that our American friends have a great admiration for the British policeman—when that has been done, the next step will be that he will report to his Chief Constable, as he always does, and then it will be for the Chief Constable to report the matter to the local United States commander, who will then be able to deal with the case as one which under this Bill is to be dealt with by the American military authorities.
Careful inquiries have been made to ascertain that our own ideas of Criminal Law and the Criminal Law which is administered in the American Military Courts correspond. I rather think under our own Army Act a Court Martial does not in this country try for murder, manslaughter or rape, but the American Military Code is wider and deals with every class of offence; and as the result of that very careful investigation that has been made, and thanks to the very full information which has been provided by the American authorities, His Majesty's Government are satisfied, and I am personally satisfied, that the American Military Courts in this country will be perfectly well able to deal with these cases of criminal offences thus handed over to them.
Of course, I wish to make it plain—it is the first point that occurs to a lawyer or, I would add, to any other clear-headed man—what the law is which the American Military Court is going to administer. Is it British law or is it United States law? The answer is that it is United States law, with the American standards of punishment, which are quite as severe as ours. 65 But you could not, of course, expect—nobody, I think, would suggest that you should—that you should load on American Military Courts the duty for the first time in their lives of first ascertaining and then applying English Criminal Law as such. The truth is, however, that the two things practically correspond, and we do not see any difficulty in making this transfer. But there is another class of case, a case which, though of less severity, has to be considered, and which may have occurred to your Lordships. Supposing it is not a case of what we may call a serious major crime—theft, manslaughter and so forth—but one of those minor offences of which there are many in this country—road offences and other smaller breaches of the Criminal Law—what then? Well, very careful inquiries have been made, and we have ascertained and are definitely assured by the American military authorities, that they can satisfactorily deal with that too.
In such a case—take a road offence—the policeman of course does not arrest. He may stop you and take your name and address and the number of your car, or whatever it is, but he does not lay hands on you. He reports what he has ascertained to his Chief Constable, and the Chief Constable, if he thinks the case of sufficient gravity, then takes out a summons, and the case proceeds before a court of summary jurisdiction. Well, here the same process will be carried through up to the point of reporting to the Chief Constable, and then, as before, the Chief Constable will communicate with the local American commander, giving him the detailed information and what the charge is, and it will then be for the American Military Court to deal with it. They will deal with it under provisions—very useful for the purpose—by which it is laid down that a member of the Armed Forces of the United States in a friendly country commits the offence of having "acted to the prejudice of good discipline" if he has acted in breach of local police regulations. I think that is a very fortunate circumstance, because otherwise some difficulty might have arisen in that case. But, if I may say so, having had something to do with this rather difficult and intricate matter, I am so completely convinced of the good will of the United States authorities in this matter and of their sincere desire not only to do what is just and right, but to give us satisfaction in what they are doing, that 66 I really do not think there is any need to anticipate difficulties on that score. If there be difficulties it may be that, hereafter, some supplementary arrangement will be made.
Finally, I would call attention to the proviso at the end of subsection (1) of Clause 1, a proviso thatupon representations made to him on behalf of the Government of the United States of America with respect to any particular case, a Secretary of State may by order direct that the provisions of this subsection shall not apply in that case.The instance which has occurred to us, and which we put to the American authorities, was this sort of case: Suppose that you have a member of the American Forces who is charged with some criminal offence in some remote corner of the island, perhaps the extreme north of Scotland. It may be there will not be available an American Military Court within anything like a reasonable distance. You could hardly ask that the witnesses should go half way across the country in order to give their evidence. If such a case arose, that would be the sort of instance in which this proviso would be useful. The American authorities might say, "We should be glad if you would deal with this case, although this is the case of a member of the United States Forces"; and it would be dealt with accordingly.
I think your Lordships will see that this is a very interesting and, I admit, a most unusual proposal: one which would never be justified or tolerated except under conditions of war, and except under conditions of the closest feeling of comradeship and of common legal traditions which exist between the United States and ourselves. I commend the Bill to the House; and, if you will allow me to say so, His Majesty's Government tender it to the United States as a proof and a pledge of the genuineness of our confidence in them and our sense that we are indeed in this business together from the beginning to the end. In that spirit I feel sure the American Courts will seek to administer the exclusive powers they will now possess, and in that spirit I beg to move the Second Reading of the Bill.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)67
§ LORD NATHAN
My Lords, as this war has proceeded Parliament has been called upon to pass legislation which has in many instances and in large degree run contrary to our practices and traditions. This Bill introduced by the Lord Chancellor is such a Bill. Nevertheless the circumstances of the case and of the time are so exceptional, and the desire of everyone in your Lordships' House and outside is so great to prove the genuineness of our comradeship, to use the phrase which the Lord Chancellor has used, with our American Allies, that we are united, I believe, in offering this as a gesture to our American Allies, notwithstanding the breach with our traditions and our practice. My noble friends who sit upon these Beaches certainly associate themselves with what the Lord Chancellor has said in that regard. There are, however, one or two practical points to which I would draw attention in the hope that, if the noble and learned Viscount does not feel it suitable to deal with them to-day, he will at all events bear them in mind when this measure comes into operation. Be it noted that the offences which the British Courts are to be precluded from taking into account are offences not of a military nature only, but any criminal offence in this country alleged against a member of the United States Forces. I am glad to think—I emphasize this—that the principle is left intact that under normal conditions, and in the ordinary case, the jurisdiction of the King's Courts remains unaffected so far as all United States subjects within these islands are concerned, save only those serving in the United States Forces. Such civilian Americans remain subject to the jurisdiction of the Courts of this country so far as all criminal and other proceedings are concerned. I am glad that that principle is in that way maintained.
As the Lord Chancellor has pointed out, not only are the American Courts to exercise jurisdiction, but they are to apply American law. American law may not, and indeed it is common ground does not, in all respects coincide with British Criminal Law though, as the Lord Chancellor has said, the underlying principles are very much the same, and they have a common origin. In our Criminal Law there are certain matters dealt with in the Courts which are in the nature of civil complaints rather than criminal complaints, though they take the form of 68 crimes under our law. For instance, there is the matter of criminal libel. I do not know whether criminal libel is a crime under American law. It may be so, but I am only giving that as an example of where, possibly, there may be cases in which matters which are dealt with as crimes under English law do not fall within the category of crimes under American law. Be my example well chosen or not, I shall be interested to know whether the Lord Chancellor has contemplated what procedure should be adopted in the hypothetical case where an American soldier has been guilty of criminal libel against a British subject, and where criminal libel is not a crime according to the law of the United States. What is the remedy of the British subject?
Be it noted also that by this Bill the King's subjects are excluded from the King's Courts as regards seeking remedies against members of the American Forces in this country against whom a criminal offence is alleged. What is the remedy of the British subject to be in such a case? The Lord Chancellor referred in very clear language to the right of a constable to arrest being left by this Bill unaffected. What will be the position when the correct way of initiating proceedings is not by arrest but by the issue of a summons? To what tribunal does the British subject refer to set in motion criminal proceedings which he may be entitled to set in motion against one who has perhaps assaulted him? What exactly does he do, where exactly does he go, since, under this Bill, the Courts of this country are precluded from entertaining an application for such a summons? That is the sort of case where elucidation, as it seems to me, would be helpful. There are a number of other such questions of a practical nature that I might put the Lord Chancellor. I refrain from doing so because I am certain that it is the desire of the American authorities to operate these arrangements in such a way as, at one and the same time, to retain authority and jurisdiction over those serving in the American Forces and to ensure that any British subject who may have cause of complaint shall be able to obtain his remedy not less at the hands of the American tribunal than he would at the hands of a British tribunal in ordinary circumstances.
There is another point which I wish to put to the noble and learned Viscount. 69 In the cases brought before the American tribunals witnesses would have to appear. Will the witnesses be under the same penalties if they omit or refuse to appear as they would be if they were called upon to appear before a British Court? Will they have any liability for contempt of court, and in that event to what jurisdiction and what Court will they be subject? Most important of all, will the same protection extend to witnesses giving evidence in the witness-box in the American Courts as it does to witnesses giving evidence in a British Court? Does the protection extend of unqualified, absolute privilege against any proceedings for slander, libel, or anything of that kind? Will they be in the same protected position in the American witness-box as in the British?
Then there is the question of the position of the Press. As your Lordships will have been glad to observe, it is provided by paragraph 5 of the Foreign Secretary's Note to the American Ambassador that in normal cases offences against a member of the civilian population will be heard in open Court. It is one of the traditional safeguards of the subject that such should be the case, and I am glad to see that it is to be carried into the new procedure before the American Courts. Under this Bill, what is the position of newspapers? Are newspapers which publish fair and accurate reports of proceedings before the American tribunals protected in the same way as if they published the like reports about: proceedings in the British Courts? That is an important question because it affects both the position and the freedom of the Press.
I put these points to the Lord Chancellor, as I am sure he and your Lordships will understand, not in any sense of carping criticism. I never saw the Bill until this morning, and I have had little opportunity for studying it. These are purely practical points that occur to me at first sight on reading this Bill. They are matters which, it appears to me, reasonably require some consideration, if indeed they have not already had it, as well they may have done. But nothing I have said is to be deemed in any way a criticism of the principles embodied in this Bill, or a modification of what the Lord Chancellor has said, with which, on behalf of my noble friends, I associate myself, as to the desirability, as an exceptional matter in the exceptional circumstances 70 of this exceptional time, of this Bill being passed into law.
§ LORD MOTTISTONE
My Lords, I venture respectfully to ask your Lordships to help to pass this Bill as soon as possible as I am quite sure, for reasons given by the Lord Chancellor, it is highly desirable that it should become law without delay. As has been said, similar, though not at all identical, procedure prevailed during the last war in France, and all of us who had experience of it there know how eminently desirable it was that offences committed by our troops should be tried by our Courts. The accused man thought that was more fair, and if there was any criticism of undue leniency or undue severity it fell, as it should fall, upon the fellow-countrymen of the accused man, or criminal if the accused man turned out to be guilty, rather than upon those who were not of his own country. For every reason, therefore, it seems to me desirable that this Bill should pass. I am asked one practical question by my noble friend Lord Crewe, who desires that this point should be elucidated—whether there is, or is not, a difference in the United States State laws in criminal procedure, and if so how that will be settled and decided in this case. It may be that that point cannot be answered at once.
§ THE LORD CHANCELLOR
It is a very natural question and I think the answer is one I might as well give now. What will be administered by the American Military Courts will be American Military Law, and that is the regulation of the American Army and is not a State federal matter.
§ LORD MOTTISTONE
That completely clears up that point. Speaking now as a lawyer, as the Lord Chancellor would say, and on behalf of other fair-minded men sitting on these Benches, or lucid-minded men as the phrase is, we all cordially commend this Bill and hope it will soon be passed into law.
THE EARL OF SHAFTESBURY
My Lords, of course every one of us would welcome this Bill as machinery for administering the law as between us and a very friendly nation across the water. There is one question which comes to my mind that does not appear to be within the four corners of the Bill. Your Lordships will realize that among the American fighting 71 Forces, whom we welcome here and to whom we extend a hospitality to our family hearths, there is a proportion of coloured troops. I would like to ask the Government to give some consideration to this question. The noble and learned Viscount on the Woolsack has told us that a good deal of the responsibility will rest upon our friend the policeman, and he told us that constabulary duty has to be done, but he omitted to give us the second part of the quotation: "And sometimes his lot is not a happy one." We must realize that there will be a lot of borderline cases from which inconvenient situations might arise. Difficulties might arise with serious consequences to our country. Therefore I hope that His Majesty's Government will give serious consideration to the sort of questions that may arise, and will do their best to meet them if they become acute.
§ VISCOUNT SAMUEL
My Lords, may I ask my noble and learned friend on the Woolsack one question on a point that might otherwise give rise to some misapprehension if it is not cleared up? In answer to a question by my noble friend Lord Mottistone, he said that the law that would be administered under this Bill in this country would be the American Military Law, which was federal and not State. Perhaps he could make that a little plainer. Suppose a murder or burglary is committed by an American soldier in this country, is he to be tried according to the code of Military Law and not in the same way that any individual in America would be tried who committed a similar crime there?
§ THE LORD CHANCELLOR
My Lords, I think those who wish to take part in the discussion at this stage have taken the opportunity to do so, and I will do my best to answer briefly the various questions put to me. With regard to the last question put by my noble friend Lord Samuel, I do not know exactly how the United States Military Code for defining and punishing criminal Offences compares with the provisions contained in different State codes, but I should suppose that it has adopted what is regarded as the best standard. I have seen some of the provisions, and, comparing them with our own, they appear to me to be of very proper severity and breadth. I do not feel any anxiety under that head.
72 As regards the points put, if I may say so, very usefully, by Lord Nathan, I think I can deal with them, because, as he has anticipated, there has been a great deal of thinking round this subject before this Bill was introduced. As regards witnesses, first of all the witnesses will certainly be under the same compulsion to attend as they would be if they received a subpoena to attend an English Court. It is partly for that reason that we have stipulated that they shall not be required to go unreasonable distances, but that the American trial shall take place near to the scene of the alleged offence. The point is provided for by the Order in Council recited in the first paragraph of the Preamble which I will not detain the House by describing: the one which is made under the Allied Forces Act, 1940. In the same way the protection of witnesses against proceedings because of what they have said in Court is provided for under part of the same Order. I have not had time actually to verify my impression about the position of the Press, but having regard to the fact that, if I recall accurately, the Press are protected if they give a fair account of a public meeting as well as of a law suit, I do not feel any real doubt that they are adequately protected if they fairly report the proceedings in open court of an American Court Martial sitting in this country. I am obliged to the noble Lord for mentioning the point and I will make sure of it. We can provide for these matters by additional Orders in Council, if necessary, under the Allied Forces Act, and it does not therefore raise any question which need delay the passage of the Bill.
Then the noble Lord referred to the case—a perfectly fair case to take, though a rather unusual one—of criminal libel. That crime certainly occupies a rather curious position in our English law. In the ordinary way—99 times out of 100—when you hear of a libel case it is an action in the Civil Courts for damages or for an injunction because the plaintiff alleges that the defendant has unjustly defamed him. There is nothing criminal about that. But it is quite true that we have also in our Criminal Law a very unusual offence—that is, it is very seldom brought to an issue—of "criminal" libel which also involves the publication of defamatory matter but which is regarded as a crime and not as a civil injury. It 73 is regarded as a crime because it is considered to be of so defamatory or insulting a character as to be calculated to provoke a breach of the peace, because even in this peaceable age and among quiet-mannered British people, if somebody publishes something about a person which is not only untrue but grossly scandalous and abominable, there is a temptation to hit the other man in the face.
In such a case a person can prosecute for criminal libel, and may succeed, even though what was said about him was true. The defendant can only succeed if he proves that not only was the statement true—it might be about something which happened thirty years ago—but that it was to the public advantage that he should publish it. He very seldom jumps both those fences with complete success. I cannot honestly say that I have turned my attention to the possibility of an American soldier perpetrating a criminal libel and of his being stopped on the way to the Old Bailey. I think we may comfort ourselves by this, that undoubtedly the American Military Court would deal with such a case, and I think would deal with it fairly as being a very gross breach of discipline, because they insist that the proper conduct for their Forces when in a friendly country is to behave themselves, and it is anything but behaving yourself if you perpetrate a criminal libel.
Lastly, there was the point mentioned by my noble friend the Earl of Shaftesbury. I do not suppose that my noble friend suggests for a moment that any distinction should be drawn between white and coloured soldiers. I am certain that neither the British Parliament nor any one of us would contemplate that for a single moment. I agree with him that the administering of this Bill will call for a great deal of discretion and good sense. I think that one of the advantages of the Bill will be that there will be an opportunity for consideration, even after the policeman has intervened, to decide whether or not the case is one which the British authorities wish to bring to the notice of the local American commander in order to admit of punitive action. We shall certainly do so in cases which call for it, but my own belief is that the Bill has been so framed and so much care has been taken about the regulations to be made as to ensure that as between ourselves and the United States Forces it will work with the minimum of friction and 74 inconvenience. I am very much pleased to find that your Lordships' House has generally welcomed the Bill.
§ On Question, Bill read 2a; Committee negatived.
§ Then, Standing Order No. XXXIX having been suspended, Bill read 3a, and passed, and sent to the Commons.