Lords Sitting of 1 July 1948

Preamble
The House met at four of the clock, The LORD CHANCELLOR On the Woolsack.
Prayers.

  POLICE PENSIONS REGULATIONS, 1948.
  4.4 p.m.
  THE LORD CHANCELLOR (VISCOUNT JOWITT): My Lords, I beg to move that the draft Police Pensions Regulations, 1948, a copy of which was presented on June 10, be approved. Your Lordships may recall that during the debates on the Police Pensions Bill in March last, I explained that it was necessary to adapt the police pensions code to take account of the National Insurance Scheme when it came into force on July 5. Policemen—who have previously been one of the excepted classes for State insurance—will, after July 5, be insured both under the general scheme and under the industrial injuries scheme, and it is necessary to make changes in the police pensions code in the light of this fact. The draft Regulations now before the House are proposed to be made under the Police Pensions Act, 1948, and taken together with that Act they replace all the existing legislation dealing with police pensions and form a comprehensive code which applies to all police officers. In the main, therefore, the draft Regulations represent a consolidation of the mass of pensions legislation affecting the police. The opportunity has been taken, however, to clear up some of the questions of doubt which had arisen on the interpretation of the Police Pensions Act, 1921, and of the legislation covering the effects of various kinds of war service on the pensions position of policemen and auxiliaries. Your Lordships must accordingly bear in mind that the new Regulations should be compared in size and complexity, not only with the old 1921 Act, but also with all this other legislation which will cease to have effect on July 5, with, of course, the added complication of fitting the police pensions
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  code into the general scheme of the National Insurance Act and the Industrial Injuries Act.
  In the White Paper issued in January of this year, the main provisions proposed for inclusion in the Regulations to be made under Clause 1 of the Police Pensions Bill were summarised, and the Regulations now before the House follow the lines indicated in that White Paper, with amendments where required to implement undertaking—for example, in relation to widows' pensions—given in the course of the passage of the Bill through Parliament. As the Police Pensions Act requires, the Police Council have been consulted about the draft Regulations. Many suggestions were made by the Police Council and, where a unanimous recommendation for a change in the pensions code was made, that change has been incorporated in the draft Regulations. The Regulations thus include a number of differences from the existing code, quite apart from the changes which have necessarily been introduced because of National Insurance.
  As your Lordships are aware, a Committee have recently been appointed by the Home Secretary and the Secretary of State for Scotland, under the chairmanship of Lord Oaksey, to examine the whole field of police conditions of service, including pensions. There are some features of the existing police pensions code in respect of which changes were suggested at the Police Council, but on which the Council were unable to make a unanimous recommendation. In these matters, the existing position has been reproduced in the draft Regulations. This does not mean that the matter cannot be considered further by the Oaksey Committee, which will have the advantage of hearing evidence from all the interested parties, and it will be for the Committee to decide whether to recommend further changes in the police pensions code.
  I will give your Lordships a brief outline of the scope of the draft Regulations. Part I describes very broadly the classes which are to receive pensions, the circumstances under which they will receive them, the authorities responsible for paying them, and so on. Subsequent Parts of the Regulations deal with all these topics in much more detail. Part II deals with awards on retirement and disablement. There are two main changes here. The first is the scheme for the reduction

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  of the pensions of new entrants to the police forces when they reach the age of sixty-five. At this age, the pensioner will be eligible to receive a National Insurance retirement pension and, as explained when the Police Pensions Bill was before the House, both the police pension and the retirement pension are being subsidised—and I may say heavily subsidised—from public funds. It would not be reasonable to expect either the taxpayer or the ratepayer to subsidise the full duplication of both pensions. The other important change, which was foreshadowed in the White Paper, is the replacement by a single scale of the existing two scales of special pensions when a policeman is disabled or killed by an injury or disease received in the execution of duty. This new scale was unanimously recommended to the Home Secretary by a committee of the Police Council on which all the interests concerned were represented, and its introduction will mean the removal of a fruitful source of dispute as to the appropriate classification of particular injuries. In the case of the disabled man, the new scale is almost exactly midway between the old so-called non-accidental and accidental scales. Where the man dies from the injury, the distinction between the two scales of widows' pensions has been removed by bringing up the lower scale to the level of the higher.
  Part III deals with awards on death—that is, awards to widows, children and dependants of police officers. Special provision is made for increasing the pensions and allowances of widows and children whose husbands are already dead, and of those whose husbands die before having paid a sufficient number of contributions to entitle them to benefit under the National Insurance Act. These pensions and allowances will be increased in much the same sort of way as pensions of widows of persons insured under the Contributory Pensions Acts are being increased under the National Insurance Act. A similar concession has been extended for the first time to widows of men who retired before 1918. In the future, policemen will be insured under the National Insurance Act and their widows will be able to get whatever benefits they are entitled to under that Act and a small police widow's pension in addition. Thus a future
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  widow who gets a National Insurance pension will receive at least 37s. 6d. a week altogether. Part IV deals with the computation of pensionable service and follows very much the lines of the existing provisions. Part V relates to pension contributions. The Police Council were not unanimous on the question of what the appropriate rate of contribution should be, and for the time being, therefore, until the matter can be considered by the Committee on Police Conditions of Service, the old rate has been reproduced, subject to a small reduction due to the modification of pension benefits on account of National Insurance. The remaining parts of the draft Regulations are not very different from the substance of the existing law.
  I do not think I need say much more about the scheme. It is quite true it is lengthy and detailed, but it replaces lengthy and detailed provisions. It has been considered and discussed in principle and in detail by the Police Council for many months, and over a wide field the Council were able to reach agreement. The Council were not able to agree on all the topics which they discussed, but there will be ample opportunity for the Committee under Lord Oaksey to consider these contentious issues against the background of the whole field of conditions of service. Apart from these issues, the draft Regulations set out a satisfactory and comprehensive code for the police service, with safeguards for existing police officers and, in some cases, especially in relation to existing police widows, provide for substantial improvements in conditions. I should add that in these Regulations there are three misprints which I will correct, if I may. On page 37, First Schedule, Part III, paragraph 2, "Regulation 42" should read "Regulation 41" Then on page 38, First Schedule, Part III, paragraph 3, "Regulation 42" should read "Regulation 41" On page 38, First Schedule, Part III, paragraph 5, "paragraph (6) of Regulation 69" should read "paragraph (7) of Regulation 68" Those are mere clerical errors, and it must be understood that in moving the Motion, as I do, I move that the Regulations be approved with those minor amendments. I beg to move.
  Moved, That the Special Order, as reported from the Special Orders Committee on Wednesday, the 23rd of June last, be approved.—(The Lord Chancellor.)
  4.18 p.m.
  THE EARL OF MUNSTER: My Lords, I rise on behalf of noble Lords who sit on these Benches to support the Motion which has been made by the Lord Chancellor, and I believe that the House would be well advised to approve these Regulations even though, as the noble Viscount said, they incorporate only those recommendations which have been unanimously agreed. As the Lord Chancellor stated, it is essential to have a new code in existence by July 5, to coincide with the coming into force of the National Insurance Act. I understand from what the noble and learned Viscount has said that, where differences of opinion have arisen in drawing up these Regulations, they will, in point of fact, be referred to the Committee which has been set up under the chairmanship of Lord Oaksey, and that at some time in the future the Home Secretary will have to lay further Regulations before your Lordships' House.
  There is little in these Regulations which calls for any comment, as the Government have fulfilled all the promises which were made during the passage of the Act. But I should like to ask the Lord Chancellor one question concerning Regulation 15, which enables a gratuity to be given to a policeman's widow in lieu of a pension. I am not wholly clear about the reasons which are likely to be considered sufficient for granting the widow a gratuity in lieu of a pension. It may well be that she has a wish' to purchase property. I do not know whether the Lord Chancellor could enlighten me on the matter, especially as under Regulation 21 the policeman's widow will forfeit her pension if she re-marries. I cannot believe that it is also intended that she should in any way forfeit a portion of her gratuity if she ultimately re-marries. The only further comment I have to make is, that I trust that a new entrant into the police force will have something simpler to digest concerning his pension rights than the very complicated Regulations which are embodied in this Paper. Finally, let me say this: that in the days when I was at the Home Office, keeping a quiet and watchful eye on the then Home Secretary, Mr. Herbert Morrison, we did not make these silly little mistakes. If we ever went into error at all we did it with vigour, as on the occasion when we completely forgot to put the Fire Service Regulation before
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  Parliament at all. It seems that the Home Office have a peculiar knack of omitting to do that which ought to be done. With those few brief observations, I would support the Regulations.
  THE LORD CHANCELLOR: My Lords, if I may I will answer now the questions which have been put to me. The question whether a gratuity or a pension should be granted is entirely a matter for the authority to decide in accordance with their discretion. On the one hand, the broad general principle is that there is always a danger that if a lump sum is granted, that sum may be squandered. That leads the authority to lean towards a pension. On the other hand, there may be an instance—as, for example, where a mortgage has to be paid off—in which the recipient can make out a case for payment of a lump sum down rather than a pension. It is entirely a matter for the authority to deal with according to their discretion. As to the noble Earl's question relating to Regulation 21, I would say that if a widow who, has had a lump sum awarded to her marries again, that which she has had she keeps. She is under no obligation to, repay any part of it. I am very sorry for these small error. I justify them on the classical ground: "Is it no: a little one?"
  On Question, Motion agreed to.

  POLICE PENSIONS (SCOTLAND) REGULATIONS, 1948.
  LORD MORRISON: My Lords, I beg to move that the Special Order as reported from the Special Orders Committee on Wednesday, June 23 last, be approved. After the very full statement which the noble and learned Viscount the Lord Chancellor has just made upon the Police Pensions Regulations, 1948, perhaps it would be for the convenience of your Lordships if I merely stated that with the exception of certain peculiarly Scottish provisions, these Regulations are exactly in line with those for England and Wales. I beg to move.
  Moved, That the Special Order, as reported from the Special Orders Committee on Wednesday, June 23 last, be approved.—(Lord Morrison.)
  On Question, Motion agreed to.

  STATUTE LAW REVISION BILL. [H.L.]
  Order of the Day for the House to be put into Committee on recommitment of the Bill read.
  Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
  On Question, Motion agreed to.
  House in Committee accordingly:
  [The EARL OF DROGHEDA in the Chair.]
  THE EARL OF DROGHEDA: The three Amendments on the Paper have all been proposed by the Joint Committee on Consolidation Bills, and with the permission of the Committee I will follow the usual course and move them altogether.
  Moved, That the Amendments recommended by the joint Committee on Consolidation Bills be made.—(The Earl of Drogheda.)
  On Question, Motion agreed to.
  House resumed.

  CRIMINAL JUSTICE BILL.
  4.24 p.m.
  Further considered on Report (according to Order).
  THE MARQUESS OF SALISBURY: My Lords, I do not know whether I may say a word now upon a point of order. I wish to do so merely for the convenience of the House. We are in a certain difficulty here. We have four Amendments relating to Clause 36. The first is by the noble and learned Viscount the Lord Chancellor. Then there is an Amendment to that which is to be moved by Lord Goddard. Next comes an Amendment in the name of Lord Llewellin, and finally there is an Amendment to leave out Clause 36 altogether. I wonder whether it would not be for the benefit of those of us who are among the less well-informed on this difficult question if there were some general discussion on these Amendments before we proceeded to debate them separately; otherwise we shall be asked to decide the Lord Chancellor's Amendment, then Lord Llewellin's Amendment and then the Amendment to leave out the clause altogether. We shall not know exactly what the general view of the House is on the principle involved until the last
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  Amendment is moved. I wonder, therefore, whether it would not be possible to have some general exposition by the exponents of the various points of view before we come to debate the Amendments. The House generally may not feel that that is right, but it seems to me that we are in a difficulty, for this is really a difficult and technical matter.
  THE LORD CHANCELLOR: My Lords, I think the suggestion which the noble Marquess has just made is a good one and that it would meet the convenience of the House if we acted upon it. But we must have some peg on which to hang our discussion, and I think that I had better formally move my Amendment. I take it that the discussions on that Amendment will range over the whole field. In due course I shall, I hope, with expert advice, try to formulate the question which I have to put to your Lordships. As I say, I agree that the idea of the noble Marquess is in principle a good one.
  Clause 36:
  Power of Court of Criminal Appeal to order new trials.
  36.—(1) Notwithstanding anything in section four of the Criminal Appeal Act, 1907, where an appeal against conviction is allowed by the Court of Criminal Appeal under that Act and it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal, direct the appellant to be re-tried upon the whole or any part of the indictment:
  Provided that—

  (a) where the appeal relates only to part of the indictment upon which the appellant was tried, the court shall not direct him to be re-tried upon any other part thereof unless in the opinion of the court it is necessary to do so for the purposes of the proper retrial of the appellant upon any part thereof to which the appeal relates; and

  (b) if the appellant, being convicted on the re-trial, again appeals against his conviction under the said Act, the court shall not direct him to be re-tried a second time.

  THE LORD CHANCELLOR THE LORD CHANCELLOR moved, in subsection (1), to delete the whole of paragraph (a) except the words "where the" and to insert:
  "appellant was acquitted on any part of the indictment, the court shall not direct him to be retried on that part; and".
  The noble and learned Viscount said: I will now, if I may, move my Amendment. I will do it shortly, because I will not

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  conceal from your Lordships that I do not pose as an expert on this branch of the law. There are many of your Lordships here who know far more about it than I do. The broad general question is of course this: Is it desirable that there should be conferred upon the Court of Criminal Appeal, in any circumstances, and if so in what circumstances, a right to order a new trial? The framers of the legislation in this connection—and I am old enough to remember how fiercely assailed the Court was at the time—did not, and quite deliberately did not, confer upon the Court this power.
  But the experience of the last forty or fifty years has thrown plenty of light on this topic, and, so far as I am concerned, I naturally attach great weight to the opinion of the Chief Justices. I think I can tax my recollection to this extent, and I believe I am not inventing, when I tell your Lordships that I have discussed the matter with the present Lord Chief Justice and with his three predecessors, the late Lord Caldecote, the late Lord Hewart and the late Lord Reading. Each and every one of them expressed to me the view that it was desirable that there should be a power in the Court to order a new trial. Now I attach importance to that, because habitually, unless he is engaged on circuit, the Lord Chief justice presides over the Court of Criminal Appeal. Whereas other Judges come and go in the Court of Criminal Appeal, the Lord Chief Justice, unless, as I say, he happens to be away on circuit, is always there. For my part, therefore, I am bound to attach great weight to the opinion which these eminent lawyers have formed on this matter, because, with the greatest possible respect to penologists, of whom we hear a great deal, I feel that His Majesty's Judges do know something about this topic. That being so, I should myself be in favour of conferring upon the Court of Criminal Appeal power to order a new trial. I state at once that I think it is a power that ought to be very sparingly exercised. I am certain that it would be the view of the Court itself that such a power should be seldom exercised.
  Recently the noble and learned Lord, Lord du Parcq, made a most powerful speech in which he criticised in particular the idea that the Court should ever be able to order a new trial on an issue on which a man had been found not guilty. The Amendment which the Lord
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  Chief justice has on the Paper, if I understand it aright, is to this effect. Though that is, of course, an exceptional thing, yet where there are two verdicts which are repugnant with each other, which do not make sense together, there should be power to hold a new trial, even on an issue on which a man has been found not guilty. I would suggest to your Lordships—and my Amendment has this effect—that a reasonable compromise is possible—namely, that power should be given to the Court of Criminal Appeal to order a new trial when they think it proper, but that there should never be power to order a new trial on an issue on which a man has been found not guilty.
  The clause with my Amendment would apply only when a man has been found guilty. Then, if the Court of Criminal Appeal say that an error was made by the Judge in summing up, they ought to be able to order a new trial. At the present time all the Court of Criminal Appeal can do, unless they are prepared to say the error could not have made any difference (I am not using technical language, but I think this is the substance of it), is to say that this man must go free. I must add that the Home Office takes no side on this matter at all. They are perfectly prepared to leave it to the collective wisdom of your Lordships' House to decide what is proper. It is not in any sense a departmental mater, and still less a Party one. So far as my guidance is of the smallest value to your Lordships, I would suggest what I call a compromise: confer power on the Court of Criminal Appeal to order a new trial, but do not allow a man acquitted on an issue to be tried again on that issue. On this Amendment we can have a general discussion. Accordingly, I beg to move this Amendment, as a peg on which to hang the general discussion.
  Amendment moved—
  Page 39, line 9, leave out from the first ("the") to the end of line 15 and insert the said new words.—(The Lord Chancellor.)
  VISCOUNT SIMON: My Lords, I had not expected to be given an opportunity of speaking about the clause as a whole so early this afternoon, but I am very glad to do so. I recognise the convenience of the arrangement which, by general consent, has been made. Of course, I entirely concur in the observation of the noble and learned Viscount the Lord

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  Chancellor, that this is not a political matter. It is not a Party matter. Nor, as he has just told the House, is it a departmental matter, because the Home Office, as we have just been informed, take no side in it at all. It is preeminently a matter on which every one of your Lordships, considering the argument on either side, will form his own conclusion, without prejudice; and the matter will be decided by the vote of the House. When the vote is taken on the omission of the clause, which is what I propose, and I am supported I think in several quarters of the House, I expect to find in each Lobby a mixture from either side. We shall apply our minds as well as we can to a very important matter, on which every noble Lord must form his own judgment.
  There is one other observation of the noble and learned Viscount to which I would refer. He told us that he was relying only on his memory—which is a very good one—and that he had heard a view expressed by many previous Lord Chief Justices that a clause something like Clause 36 should be enacted. Well, I have not the advantage of being able to say that. I can only say that I knew Lord Chief Justice Reading well, having been a law officer with him for some years, and afterwards seeing him constantly when he was Lord Chief Justice. It may be so; but he did not express the opinion to me. However that may be, your Lordships will have to decide this question as well as this House can decide it, and this House is admirably equipped for deciding, "yes" or "no" on questions of this character.
  The first point to which I wish to draw the attention of your Lordships is the history of the clause. The Home Secretary, Mr. Chuter Ede, introduced the Criminal Justice Bill in the House of Commons. It did not include this clause. The Home Office have most abundant opportunity of gathering opinions on questions of this sort, and though they had lots of time to give this mature consideration, the Home Secretary's Bill did not include this clause. Nor was it in Lord Templewood's Bill in 1937. When the House of Commons had dealt with this Bill, both on the floor of the House and in Committee, still (so far as I know) nobody had proposed to insert this clause, and it came to this
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  House without any clause which would confer on the Court of Criminal Appeal this new power to order a fresh trial in respect of a man who had already been convicted. It was introduced during the Committee stage, and impressive speeches were made. I need not say that I most warmly concur with the noble and learned Viscount the Lord Chancellor, when he says that he attaches special importance to the opinion of the Lord Chief Justice in this matter; and we know he thinks that this clause, or something like it, would be a good thing. I must say, however, in the presence of some of your Lordships who may have been here on that occasion, that I think the speech which most impressed the House was the speech of the noble and learned Lord, Lord du Parcq. I have seldom heard a more powerful argument delivered by a Law Lord in a matter of this kind, and many of your Lordships were greatly impressed, as I know from subsequent communication, with what he said. We are not here engaged in examining everybody's credentials, but I would remind the House that Lord du Parcq has a very long experience as a criminal Judge, and in past days constantly sat on the Court of Criminal Appeal. So we may assume that there is a pretty good argument to be heard on either side. No doubt the noble Lord, the Lord Chief Justice, who will forgive me for taking a view opposite to his, will put his point of view, shortly and effectively.
  I do not claim to speak with the same authority as the noble Lords I have mentioned, though in fact in times past I have had a good deal to do with the Court of Criminal Appeal. What strikes me about it is this: that we cannot fully judge this matter unless we first spend a few moments in realising exactly what are the present powers and duties of the Court of Criminal Appeal. I would mention briefly three points. The first is that the right of appeal to the Court of Criminal Appeal is a right given solely to a person convicted. Nobody else can appeal. The prosecution may think it has a good case, may think that witnesses proved it, but if a jury declare that the man is not guilty, there is no question of the prosecution going to the Court of Criminal Appeal. Secondly, it is by no means the case that the Court of Criminal Appeal then proceed in some formal way

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  and, because they find there is something irregular in the trial say "This will never do; therefore this man must be discharged. "Not at all.
  I would venture to read to the House the provision in the Act. It is extremely plain:
  "Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant"—
  that means the convicted person—
  "dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."
  So the Court of Criminal Appeal do not simply listen to an objection—which may be a well-founded objection, because even the best-conducted trials sometimes go wrong—and say: "Well, it was not quite regular and, therefore, we must allow the appeal" Not at all. The Court of Criminal Appeal will say: "You are a convicted man, and you will remain convicted, notwithstanding that you have satisfied us that the summing up was not quite what it should be, or that there was evidence admitted which should not have been admitted, because we ourselves take the view that there has been no substantial miscarriage of justice."
  There is a third point. It is rather more technical, perhaps, but no less important. Anybody who is familiar with this subject will appreciate its importance. In some quarters, at any rate, it used to be supposed, when there was proved to have been something irregular, that before the Court of Criminal Appeal could say: "None the less, we will confirm the conviction. You will lose your appeal, and you, the convicted man, must serve your sentence," that the test was whether they could be sure that a jury, with proper material before them, would convict. Indeed, the expression was actually used that they ought to feel that that would be the "inevitable" consequence. Quite recently, the House of Lords, acting in its judicial capacity, has decided, and unanimously decided, that that is not the right way to look at the matter. The question which the Court of Criminal Appeal now ask is this: Suppose that there were a reasonable jury, and they acted reasonably; and that they had before them that part of the material which is not objectionable, and a proper summing up: would this reasonable jury (that
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  is the true test) still have convicted? If the Court of Criminal Appeal reach the conclusion that they would, they do not discharge the man. They take the substantial common-sense view: "Well, you may have objections; you may have proved that this or that was irregular; but, none the less, we are not going; to allow your appeal, because in substance we are satisfied that you would have been convicted by a reasonable jury on proper evidence, omitting what was improper."
  That is a striking contrast to the met and which used to be followed, at any rate, in many courts in America. If I do not misunderstand, in the United States the cases in which new trials are ordered in criminal matters are very numerous. There were those two people called Sacco and Vanzetti, who waited for seven years before the courts in America decided whether or not they should be convicted; and similar cases have arisen in the Southern States in the case of negro boys. From the very beginning our principle has always been quite different. I myself think (it is only my own opinion, but it is arrived at after much reflection, because I did not take part in the debate in Committee; I listened to what was said) that we ought not to insert this clause, and that it would be better in respect of this matter to leave the law as it is.
  I will state why I hold that opinion. The first reason—I say this subject to correction, but I believe it to be an absolutely accurate statement of a fundamental principle of our criminal law—is this. It is a fundamental principle of our criminal law that when a person has been tried before a competent court for an offence, and has been convicted, then he can never in any circumstances be compelled to stand his trial a second time for the same offence. I know of no exception whatever to that principle. It is true, of course, that a man convicted by magistrates may appeal to the Quarter Sessions, and that in effect there is a new trial. But that is because he chooses to appeal. There is no case known to me in which, under our law, we recognise the possibility of a man who has been convicted by a competent court being told: "That is all very well, but you will now have to stand a second trial" I will venture in a moment to point out why I think that would be an unwise change for

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  us to make. I do not think that we should invade that principle.
  I concede that cases do arise (and my noble and learned friend the Lord Chief Justice, gave us one or two examples) under our present law, with the result that a man who we feel is guilty none the less escapes by the decision of the Court of Criminal Appeal. That is certainly true. But, as my noble and learned friend Lord du Parcq, and indeed, the noble and learned Viscount on the Woolsack, said in Committee, it is far better, for preserving our criminal law, and the prima facie right of a man who is presumed to be innocent, that that should happen occasionally than that one innocent man should be convicted. I would go further and suggest to your Lordships this proposition. If it be the case that by putting a man on his trial a second time for the same offence he will be prejudiced, or may be prejudiced, then that is a very good reason for refusing to change the law, and for saying that he ought not to be put on his trial for a second time. The all-important thing is that nobody should run any risk of being tried unfairly. It seems to me that the proposal that a man who has already been convicted may be ordered to be tried a second time may well lead, at any rate in some cases, to unfairness.
  Consider what are the circumstances in which, if this clause were included in the Bill, the Court of Criminal Appeal would order him to be tried a second time. I heard my noble and learned friend the Lord Chief Justice say on the Committee stage that this power would, of course, be used but rarely; and the same thing has just been said by the noble and learned Viscount the Lord Chancellor. I am sure they are both right, though there is nothing in the clause to say so. You cannot put that kind of thing into the clause at all. I am willing to believe that it would not be exercised without great consideration. But what are the circumstances in which they would make such an order? If the Court of Criminal Appeal are satisfied that a reasonable jury would convict the man if there had been no irregularity, then, as the law stands, the Court of Criminal Appeal will say that he must remain convicted. There is no question of ordering a new trial there.
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  If the Court of Criminal Appeal are satisfied that a reasonable jury would acquit him, surely you are not going to tell me that, in those circumstances, the Court of Criminal Appeal would order a new trial. If they feel confident that he would have been acquitted by a reasonable jury, they would never dream of putting him at the peril of being tried a second time.
  It follows, therefore, that the only case in which it would be supposed that this power would be used—the only case where one can imagine it being used—is where the Court of Criminal Appeal think that the first trial was so irregular that it really cannot stand, and yet feel uncertain whether, with a properly conducted second trial, the man would be convicted. I must say, for myself, that I should have thought that there the very important principle came in: that no man is presumed to be guilty; that every man is to be treated as though he were prima facie innocent and that if there is a reasonable doubt about it he is entitled to be discharged. But be that as it may, I am afraid that I think it is quite inevitable that a jury in those circumstances might, in some cases, be in a position where the man would not get an entirely unprejudiced trial. Juries in this country ought to know nothing about the previous history of the man. Is it really to be said that the jury will not say in many cases: "Oh, I remember this man; I read about him in the papers. The case is quite notorious. He was convicted before. He appealed to the Court of Criminal Appeal, they have sent him back to be tried again and I can quite see why" I cannot think that in many cases that is a fair thing to do.
  I will put a second point, which is quite important, though it is a financial point. It was put most powerfully by my noble friend Lord du Parcq on the Committee stage. The noble Lord asked us to imagine what it was like to be put in the dock and charged with a given criminal charge—a man who may be innocent, who may be guilty, but at any rate has not been proved to be guilty. The small man with limited resources will do everything that he can to secure his acquittal. He may, and often does, exhaust his small resources in the process. None the less, he gets convicted. He goes to the Court of Criminal Appeal and he establishes that, as a matter of fact, the trial

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  was so irregular that it ought not to stand. Is the Court of Criminal Appeal then to say to him in effect this: "Well, it is true that you mortgaged your house and you used all your resources in order to defend yourself. It is true that you live in a country where it has always been the principle that a man cannot be put on his trial for a second time after he has once been convicted. But Parliament has altered all that, and now you are going to be put on your trial for a second time" I do not think that that is the proper way in which to frame our criminal code.
  The fact that there may be prejudice in it is implicitly admitted by this clause. If your Lordships look at the clause you will see that it goes on to provide that he shall not be tried more than twice. Well, why not? If the principle which is supposed to be at the back of this clause is supposed to be a good principle, why should he not be tried more than twice? The reason, of course, is that it is realised that at a point it does not become fair to put a man on his trial again after he has been convicted. The lawyers in this assembly will know that that principle is so old that, even to this day, the defence: "I have been already convicted and, therefore, you cannot try me again" is expressed in old law French. It goes back to the days when we still used a sort of mongrel French for our pleas in the Court of Criminal Appeal. It is autrefois convict—"I have already been convicted" That was an absolute reason why a man should not be tried again. If this clause is added to the Bill, that would no longer be true, and I am very unwilling to see that change made.
  Finally, I want to put a point which is perhaps more for the Lord Chancellor than others. Of course, as the Lord Chancellor and others know, in very rare cases there can be an appeal to the House of Lords from the Court of Criminal Appeal. It is done on the certificate of a Law Officer who says that a general point of importance is involved. I wonder how this clause is going to work then, because you might have a man who has been convicted at the Old Bailey, who then goes on appeal to the Court of Criminal Appeal and is still treated as convicted. He gets the certificate of the Attorney-General that the case should be heard in the House
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  of Lords by the Lord Chancellor and the Law Lords. At present, all that the House of Lords can do is either to confirm the conviction—in which case the man serves his sentence or whatever it is—or to say that the appeal is well-founded, whereupon the man goes free. But if you are going to adopt this principle, because you have some reason to fear that a man who really is guilty is going free, what is the House of Lords to do? We shall get to the height of absurdity if the House of Lords is then to be entitled to order a new trial, to begin right down at the bottom again and mount up the stairs for a second time. Those are the considerations which have appealed to me. I am quite aware that there are many (whose experience and judgment I most sincerely respect) who may take a different view, and what I put—I hope, without any quarrelsome temper—I put merely because I trust that your Lordships will consider the weight of these arguments.
  There is just one further thing to be said. I have concerned myself, since the Committee stage, in reading the proceedings which took place in Parliament in the years 1906 and 1907 and which led to the passing of this Criminal Appeal Act. There are one or two others in your Lordships' House—one certainly—who took part in those discussions in 1907. When that Bill was introduced it was in the time of Lord Chancellor Loreburn, formerly Sir Robert Reid, and was introduced by the Liberal Government of that day. When the Bill was introduced it contained no provisions for a new trial. There were certain legal members of this. House who thought that there ought to be a provision for a new trial and, consequently, that was inserted. In the House of Commons that was considered and; by a great weight of opinion, the provision for a new trial was rejected. When it came back to your Lordships' House, Lord Loreburn dealt with the matter, and with your Lordships' permission I will read a short extract from what he said. He said this:
  "Under the Bill of last year as originally introduced the Court of Appeal might either confirm the conviction, or quash the conviction, but they were not entitled to order a new trial That was my own original view, and I thought it was the best view…or I should not have inserted it in the Bill. But during the progress of the Bill through Your

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  Lordships' House high legal authorities expressed the opinion that the Court of Appeal ought also to be given the power to order a new trial, and I yielded to that opinion although it did not correspond entirely with my judgment. That provision for a new trial was contained in the Bill as it was introduced in the House of Commons; but the provision was struck out by the Commons. Mr. Akers-Douglas"—
  a previous Home Secretary—
  "Sir Edward Carson, Lord Robert Cecil, and others of experience and knowledge took an extremely strong view on that point, and I think there is a great deal to be said for the action of the Commons, because it approaches the confines of torture to put a man on trial twice for the same offence"
  I am not responsible for the then Lord Chancellor's expression, but I am entitled to say that very distinguished men thought when this Bill was passed, and the very matter was before them, that to try to put a man on trial twice after being once convicted was not a wise, course to pursue.
  I have learned one important thing from reading these old debates. It has not been mentioned and it is rather interesting. One of the principal reasons for urging the passage of the Criminal Appeal Act in 1907 was to relieve the Home Secretary from a very awkward and difficult task. If there were no Court of Criminal Appeal, and if there were a petition to the Home Secretary to modify a sentence or to let a man go, one of the things the Home Secretary had to consider was whether the evidence that was called in the case was all admissable, and whether the summing up was a proper summing up. Those are questions which, as your Lordships will at once see, are not necessarily very easily decided by the Home Secretary—unless he has a quite exceptional experience of the operations of criminal law. The Court of Criminal Appeal Act relieved the Home Secretary of that task and he was merely left then with the duty—though it was a grave enough duty and not by any means limited to capital cases—of considering whether or not the sentence should be reduced or the man let off.
  But before the passing of the Court of Criminal Appeal Act, nobody ever dreamed that the Home Secretary should say, "Let the man be tried again" It would be utterly contrary to every principle. I believe, therefore, and I submit to your Lordships, that the better course
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  in this matter would be to omit this clause. I am supported in this view by the noble Viscount, Lord Templewood, and also by the noble Marquess, Lord Reading, whose name would be down to it but for a technicality. I believe I am supported in this view by a number of noble Lords in different parts of the House. It is a matter on which it cannot be said that the argument is all on one side, by any means; but I think there is strong reason for saying that, on the whole, it would be wiser not to make this enactment. The noble and learned Viscount the Lord Chancellor two days ago, when he was discussing what should happen if there were a breach of a probation order, quoted both in Latin and English—though in another connection—the maxim which I am seeking to apply here. He said that in plain English the maxim meant that you could not "have a man up twice for the same offence" Once convicted, he cannot be tried again. It is much too serious a thing to impose upon him, and it is better that every now and again there should be somebody who escapes, who you and I may well think is a guilty man, than that we should fundamentally alter the law of this country and say for the first time in effect: "I do not mind that you have been convicted before; the circumstances are such that you must be tried again."
  4.55 p.m.
  LORD GODDARD: My Lords, I would far rather have taken part in this discussion at a later stage, when I had heard some more arguments, but unfortunately my duties oblige me to be opening the Commission at Stafford to-morrow and I shall very shortly have to leave for that county. I would therefore ask your Lordships' indulgence to let me place before you the arguments on the other side of this matter, for I think it is a matter on which many of the Judges who habitually sit with me in the Court of Criminal Appeal feel strongly. I shall presently give your Lordships a few quotations to show why I think that.
  I know that there is a great weight of opinion against this clause. I shall not be able to address your Lordships with the eloquence and vigour of the noble and learned Viscount who has just spoken, or with the eloquence which my noble and learned friend Lord du Parcq used on Committee stage. But there are,

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  I venture to think, substantial reasons, which become more apparent as time goes on, why you should give to the Court of Criminal Appeal the same power as is possessed by every other Court of Appeal. First, let me say that I fully appreciate the bearing of certain arguments which are used against this clause. My noble and learned friend Lord Simon said at the beginning of his speech that it should be borne in mind that only the convicted person could appeal. That is so; therefore we start with the fact that the Court of Criminal Appeal have no jurisdiction at all, and never entertain any case unless the man has been convicted of something. I cannot, therefore, understand how any argument about the risk of an innocent man being convicted, or that it is better that ten guilty men should be acquitted than that one innocent man should be convicted, has any bearing on this subject. A man appeals to the Court of Appeal because he has been found guilty, and he desires the court to say that that conviction ought not to stand. That is the first point.
  It is said, and said with great force, that this introduces an entirely new principle into criminal law. I am going to deal in a moment with the question of re-trials and whether re-trials have not, in fact, existed for centuries in this country. But assuming for a moment that it is a new principle, the reason is that criminal appeal is a comparatively new principle. There was no appeal, in the true sense, until April 18, 1908, when the Criminal Appeal Act of 1907 came into operation. Until then, the only means of appeal appeared if the Judge or presiding Chairman who tried the case chose to reserve a question of law—and of law only—for the Court of Crown Cases Reserved. The prisoner had no right to appeal; he could not appeal to anyone—I leave out an appeal on the ground of a writ of error, which is a very highly technical matter and lies only in certain very curious points that might arise. No appeal on the ground of misdirection, no appeal on the ground of misrepresentation of evidence, no appeal on the ground that the verdict was unsatisfactory and ought not to stand, could lie—except, of course, that on a question of misdirection a learned Judge might take the opinion of the Court of Crown Cases Reserved if he did not know whether his direction
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  was right. In 1907, he law was fundamentally altered, and the extensive right of appeal that was given by that Act came into English jurisprudence for the first time. When there is a fundamental change of that sort, it naturally means that other changes must follow. What happened was that the Court of Criminal Appeal were given two powers, and two powers only: to confirm a conviction or to quash a conviction.
  The noble and learned Viscount, Lord Simon (as did my noble friend, Lord du Parcq, on Committee stage), emphasised the fact that there was a proviso, as we always call it, in the Bill enabling the Court, if they consider that the misdirection was unimportant, and did not cause a miscarriage of justice, to confirm the conviction, even though they think what the objections taken by the prisoner have foundation. The noble and learned Viscount has reminded us that your Lordships' House, sitting judicially, has recently laid down that the question is whether a reasonable jury would have found the same verdict. The difficulty which the Court so often feel in applying this proviso is one of the principal reasons why we often think that there should be a new trial. If I may say so with all due respect, if we had the advantage in the Court of Criminal Appeal of having the noble and learned. Viscount presiding there, he might, with his great legal knowledge and attributes, be able to evolve a scheme by which we could come to a conclusion more readily than we now can as to what a reasonable jury would do. Every jury is supposed to be reasonable, but bitter and long experience has shown me that there are such things as unreasonable juries. However, it is almost beyond the wit of man to say in every case, and certainly from the point of view of doing due justice to the prisoner, whether if so and so had not happened in the course of the case, and if such and such a direction had not been given, a jury would assuredly have come to the same conclusion.
  I do not want to bore your Lordships by citing cases, but may I cite one instance of a recent case, which I believe I mentioned on Committee stage. It was a case in which a man who was tried for burglary at Southend and was arrested in London set up an alibi, and said that

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  at the material time on a Sunday evening he had been in a billiards club. Unfortunately, nobody—neither the learned chairman nor counsel—remembered that what he had said was "billiards club," or, if they did, they did not notice the significance. The learned chairman thought that he had said "in a billiards room," and not once but I think three times in the course of his summing up he said: "You can judge possibly the truth of the prisoner's alibi by the fact that he said that he was in a billiards room. Billiards rooms are not open on Sundays." But billiards clubs are. The proprietor or manager of the very billiards club to which the prisoner said he had gone was called to give evidence, and he said: "I cannot say that the man was in the club. I do not remember whether he was in the club two months ago, but the club was open."
  What were the Court to do? There was a cardinal point in his alibi. I am bound to say that I do not think the Court had much doubt as to the guilt of the man, but we could not put ourselves into the place of the jury. We do not usurp the functions of the jury. That is one of the things about which we are most careful. If a jury arrive at a verdict, on the evidence, and on a proper direction, we say that the verdict of the jury, the constitutional tribunal, must stand. We could not say in that case what the jury would have done if that point in the alibi had not been taken. The man's alibi was, to a great extent destroyed by that. There was, I think, no more truth in his alibi than there is in most alibis. But there it was; it was his defence and he had a right to have that defence put to the jury. Unfortunately, it was to a great extent destroyed by what the learned Chairman said. That was a case in which an accident had happened. Would not justice have required that that man should be tried again? Why should he not be tried, if he had been convicted by a jury? I will deal with some other aspects of the question in a moment. We were forced to say: "A mistake has been made which may have misled the jury, and we cannot say that it has not." That is one of the cases in which, if justice is to be done—and the great test is: "Can justice be done?"—a new trial might have been ordered.
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  As soon as the Act of 1907 came into operation, a new state of affairs arose, and that ought to be remembered. A right of appeal was given where no right of appeal had been given before. I venture to say that it is right and logical that the Court of Criminal Appeal should have the same power of ordering a new trial, but only in exceptional cases. I agree that you cannot define them, but you can trust the Court, as in civil cases you can trust the Court of Appeal, who are most reluctant to order new trials but do so when justice requires that it should be done. This right for very many years has certainly been longed for by the Judges who form the Court. I do not know what the views of my noble and lamented friend Lord Caldecote were, because I never sat with him in the Court. But I sat for many years—at least six years—on occasion with Lord Hewart, and I know that he took that view. I know that the Judge who, of all others, has had the greatest experience of the Court of Criminal Appeal—namely, Mr. Justice Humphreys—and who, for the last twenty-one years, has sat more often and has rendered greater assistance to that Court than any other Judge who has ever sat in that Court, has said, not once but many times, that it is essential for the due administration of justice that the Court should have this power.
  A point which was raised by the noble and learned Viscount, Lord Simon, was, what was to be the position of the House of Lords? In that connection, I should think that it is in exactly the same position as it is in civil matters. The fact that the Court of Appeal order a new trial in a civil matter does not disable a further appeal to the House of Lords. I have never heard that a further appeal to the House of Lords has caused any difficulty or embarrassment to anybody, and I do not believe that it would in this case. May I take another point? It is said that this power will create a new principle: that a man who has been convicted should be tried again. There is a certain truth in that, but it is not a new principle that a man who is charged with an offence should be tried twice for that offence. It is what happens every year in many instances, because juries disagree and therefore the man has to stand the torture or hardship or ordeal—use any words you like—of a second trial.
  VISCOUNT SIMON: May I be forgiven for interrupting? The Lord Chief justice is misunderstanding me. I was not talking about the case in which the jury fail to agree. My proposition was that our law has laid down quite clearly the principle that once a man has been convicted he ought not to be exposed to a second trial, and that if he is exposed to a second trial he has a complete defence on the ground that he has been already convicted. With great respect, it has nothing to do with there being a disagreement.
  LORD GODDARD: With great respect to the noble and learned Viscount, I thought I said that I agreed that the question of a further trial where there has been a conviction would be a new departure. That I quite agree. But I would also point out that once the conviction has been set aside, he has not been convicted. That is the whole point; he has not been convicted because the conviction has been set aside. I thought, and I still think, that one strong point which was made here on behalf of the opponents of this clause, by my noble friend Lord du Parcq (whose speech I listened to with care and with admiration), was that it was a hardship on a man to stand trial again; and that, I understand, was what Lord Loreburn meant in the passage which was read out a few moments ago by the noble and learned Viscount. I took the trouble to communicate with the Central Criminal Court yesterday to find out how many cases of re-trials there have been recently, and Sir Wilfrid Nops, the Clerk to the Central Criminal Court, tells me that between June 1, 1946, and yesterday there were 22 cases in which people had to stand their trial a second time because the jury had disagreed, and in 37 more cases re-trials had to take place as the jury had to be discharged without giving a verdict because of some inadmissible evidence creeping in—probably some evidence to show that the man had been previously convicted. Then there are other cases, rare, I agree, but cases which I have known, which are in law called "cases of mis-trial," where a man has been convicted but for some reason or another, probably owing to a defective constitution of the court, he has not been in peril because technically there has not been a court to try him.
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  Perhaps I may give an example. Some years ago the learned Recorder of a town in East Anglia fixed his Quarter Sessions, and he was taken ill. Living close to the town was a gentleman whose name I will not mention (he is still alive), who occupied an important judicial position in regard to the Railway and Canal Commission. He was also Chairman of Quarter Sessions for one of the Northern counties. Not unnaturally, the Recorder turned to him and asked him to sit in his place. He did so, and a man was brought up, indicted, arraigned and convicted. Then the prisoner's solicitor, with an ingenuity almost worthy of a better cause, discovered that this gentleman was technically not qualified to sit—in fact he was a solicitor and not a barrister, and therefore the conviction had to be set aside and the man had to be re-tried. There again there was a re-trial; the man had been convicted in one sense, but of course he had not been convicted. I am urging this only to show—if it is to be said of such a re-trial that no man ought to be put upon his trial a second time, although the first conviction has been set aside—that it is a common feature of criminal courts to try a person a second time when he has already stood his trial, by reason of the fact that the jury have not come to a verdict, or because there is some defect in the constitution of the court, or something of that sort.
  I remember that in my early days at the Bar, in Wiltshire, I defended a woman charged with murder. The jury disagreed at the first trial, and she had to be tried again; and she was tried again in the sane town. The fact that the jury had disagreed at the first trial, at any rate, showed that some of those jurymen thought she was guilty. But that did not affect the jury in the second trial; she had a perfectly fair trial on the second occasion, and she was acquitted. About the same time there was the famous case in the East of England called the Peasenhall murder case, in which the jury disagreed not once but twice. The prisoner was not tried a third time because it was thought improper—as I am sure your Lordships will agree that it would have been—and the Attorney-General, in the exercise of his undoubted prerogative, ordered the prosecution to be withdrawn. So I beg of you, when considering this question, not to consider it merely from the point of view as to whether it is unfair

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  or a hardship on a man to have to stand his trial twice, because people have to stand trial twice now. My noble and learned friend Lord Simon says that it would be an innovation that a man who had been convicted should be tried again, but the moment the Court of Criminal Appeal have set aside the conviction there is no conviction; and the man certainly cannot plead autre fois convict because the conviction has gone.
  Then the point is made—and Lord du Parcq laid great emphasis on this in Committee—of the expense to which the man has been put: he may have mortgaged his house, he may have mortgaged his goods, to raise money for his defence. I think the short answer to that point is that in the vast majority of cases—I would say in certainly 90 per cent. of the defended cases at Assizes or Quarter Sessions—the prisoners are defended at the public expense, under the Poor Persons Defence Act. Those defences are given with a freedom which, years ago, they certainly were not. Now one finds every prisoner represented, even if he is pleading guilty, and one could wish that many of them felt more grateful or had a more proper appreciation than they have of the privilege given to them. Time and again, in the Court of Criminal Appeal, one finds prisoners, after they have pleaded guilty, and after having been represented by counsel, saying that they pleaded guilty only because their counsel told them to and asking whether they could have a new trial. In those cases the prisoner is defended without any expense to himself.
  In the Bill now before your Lordships there is a clause which has been accepted by the House—and it was in the Bill as it came to here—providing that where a person is acquitted, either in the court of trial or by the Court of Criminal Appeal, if he has provided his own expenses he can recover his expenses from the county, just as it is possible to recover the expenses of the prosecution. I do not know that we need feel any particular tenderness for a man who has been convicted, even if he has had to spend a lot of money. But if he is acquitted, although he may not have been defended under the Poor Persons Defence Act but by his own solicitor and counsel, there is a provision enabling the court to award him his costs.
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  So again I hope that that is not an objection which will really appeal to your Lordships
  There is one other matter that I think I ought to mention. As your Lordships know, there is still an unfortunate distinction in law between felonies and misdemeanours. Misdemeanours are sometimes very serious cases. Obtaining money by false pretences is a misdemeanour, although stealing a halfpenny is a felony. Obtaining £5,000 by false pretences or fraud is a misdemeanour; fraudulent conversion is a misdemeanour. Many other cases, including perjury, are misdemeanours. I have with me a work of authority which I will show to any noble Lord who is interested in the matter—namely Chitty's Criminal Law—which says that, at any rate from 1655, and probably before the Court of King's Bench always claimed the right to order a new trial in misdemeanour. It says:
  "A new trial may be granted by the superior Court for a variety of reasons, in order to further the purposes of justice."
  That is what we are asking now—to further the purposes of justice.
  LORD DU PARCQ: Might I ask which court would have that power now?
  LORD GODDARD: I said it was not a new principle in English law, and that the court had power is laid down by Chitty. I believe that the noble and learned Lord if he looks will also find it stated in Archbold that for misdemeanours a court could order a new trial.
  I referred a moment ago to Mr. Justice Humphreys who, in my view, is the Judge who has had the greatest experience of any judge in this Court since the Act came into force. I have a short extract from a judgment of his in which he asked for this power. Before I read the extract from the judgment, let me tell your Lordships what the case was, so that you may see the class of case in which it would be available. A roll of cloth was stolen in Manchester. Shortly afterwards a woman was seen walking through the streets with the roll under her arm. She was, therefore, in possession of property recently stolen. She was seen to deposit the roll in a certain place. She was identified as the person who had done it and she was arrested. The only explanation which she ever gave was: "I know nothing about it." She,

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  therefore, was in possession of property recently stolen and she gave no reasonable explanation. When she came before the Assistant Recorder at Manchester Quarter Sessions, an unfortunate state of affairs arose. Her counsel was not present There was, it seems, some mistake. It was thought that the case was not coming on until two o'clock. Now it was the only case before the court, and the jury were in the box. The Assistant Recorder said he could not put the case back. No explanation was then given as to why counsel was not there, nor was it stated if he was ever coming. The woman was tried. The Assistant Recorder did all he could for her, and tried to persuade her to give some explanation. She said she could not do it in the absence of her counsel. The jury convicted her. She appealed. When the appeal was heard, counsel appeared for her and told the Court of Criminal Appeal of the mistake which had occurred. He satisfied the Court that, at any rate, there was some point which he had desired to put before the jury. It was, therefore, clear that the woman had been convicted on legal evidence after a fair trial, but, of course, her own defence—if she had one, which really never appeared—was not put before the jury.
  Mr. Justice Humphreys presided at the hearing of the appeal and in the course of his judgment he said:
  "If this Court had the power which this Court time out of number stated that it ought to have, of ordering a new trial in the very, very few cases in which the court would consider a new trial was the appropriate remedy, there is no question that this case is one which is crying out for a new trial if we had power to order it. It is exactly what is wanted, a new trial when the defendant could be represented and justice could be done one way or the other, but we have no such power… I can only say, as a member of this Court, I think with the approval of my brothers"—
  I believe that the other two judges were Mr. Justice Oliver and Mr. Justice Birkett—
  "that we all hope that there will be such power given to this Court, and it will be difficult to imagine a case which more urgently calls for sue h power being entrusted to the Court than the present one."
  There is, of course, this point, and the noble and learned Viscount who sits on the Woolsack has referred to it: that as the clause stands and, as I confess I should prefer it, there would be power given to the Court to re-try the whole indictment,
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  though the prisoner might have been acquitted on some counts, if the acquittal on those counts is inconsistent with the conviction on another count or counts—or, to put it in a better way, where the conviction is inconsistent with the acquittal. The classical example is the case of the two metropolitan police constables which was heard a short time ago. They were charged with conspiracy to rob, and with robbing A, B and C. For some reason they were convicted of conspiracy and acquitted of the robbery of A, B and C. The only evidence that those two men had conspired was evidence that they did rob A, B and C. That was the case for the prosecution. The Court of Criminal Appeal had to quash the conviction because it was inconsistent to acquit those, men on the facts of lie robberies, and yet, at the same time, say that they conspired to rob.
  If your Lordships think that in no case should a man be tried again upon a count upon which he has been acquitted, I would gladly give way on that point, rather than that your Lordships should refuse to give the Court of Criminal Appeal any power at any time to order a new trial. I do not want to detain your Lordships further except to say that in a civil case very often issues are raised which are quite as important to a man as those which can be raised in a criminal case. A man may have to bring an act on for defamation because he has been accused of shocking conduct and his whole future depends on his getting a verdict. A woman whose honour may have been attacked may have to defend herself by bringing an action for slander or libel in the courts. A man may find himself sued for fraud, with allegations which, if true, would render him unfit to carry on any business in the City of London and might imperil the whole of his fortune. Those people surely will have just as much and just as bitter anxiety as anyone who is put into the dock, the only difference being that, for the moment at any rate, they cannot be convicted, though if they lose the case it may be that the shadow of the criminal law looms over them. Yet if they win their case it is open to the other side to take it to the Court of Appeal.
  The Court of Appeal will no doubt be reluctant to put the parties to another trial, but the circumstances may be too strong for them, and the Court may say

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  that they must order a new trial. Why must they? They do it in order that justice may be done, that justice may prevail. That, surely, is what we all want to aim at. Whether we are in a criminal court or in a civil court, let justice be done. When we talk about justice being done in a criminal court I fear that many laymen get into their heads the idea that we are thinking only of the acquittal of the prisoner. That is not necessarily justice. There is an old saying: Judex damnatur ubi nocens absolvitur. I would prefer to put it in this case Lex damnatur—the law is to be condemned if it allows the acquittal of the guilty in this way. We ask for no more than that the Court of Criminal Appeal should have the same powers as the Court of Civil Appeal, and we ask it for the same reason—that we may do justice.
  5.28 p.m.
  LORD DU PARCQ: My Lords, every noble Lord has listened with attention to the speech which has just been delivered by my noble and learned friend Lord Goddard, and everyone must have been impressed by it. But there are some matters which I should like to dismiss at once. First of all, let me say that I wish to waste no words on the question which was much before us in the Committee stage—namely, whether it should be possible to re-try a count on which a man has been acquitted. The Lord Chief Justice says that he will not press for that, though he would like to have it. I believe—and I hope that I am right—that this House would reject by a very large majority any such suggestion, and I am not going to say any more about that matter. Others of your Lordships perhaps may. I am going to deal with the great question of whether the Court of Criminal Appeal ought to be given this power, and some of the things I would like to get out of the way are these.
  First, this is not a matter to be decided by a counting of heads of legal luminaries and saying: "So many Judges on one side, and so many Judges on the other." This is a case for lawyers, in the sense only that lawyers, whether at the Bar or on the Bench, get a good deal of experience and are brought into touch with the people who are most concerned—the people, sometimes innocent, who find themselves in the dock. Then something
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  was said by the noble and learned Viscount the Lord Chancellor about penology. This is not a question between lawyers and penologists. Penologists are not in the least interested in innocent people. They are interested as penologists only in people who have been convicted, and who are to be punished. I well remember that I was very pleased once, as a young man at the Bar, when after I had conducted an enthusiastic defence, a woman who had been charged with obtaining goods by false pretences, was acquitted. As I came out of the court I met a most excellent lady—she was not, I think, a probation officer in those days, but a court missionary. She was almost in tears. "I had all the arrangements made to look after this woman when she was convicted," she said. "I would have saved her. You have ruined everything by getting her off."
  We need not trouble about penology here. This has nothing to do with penology. And it has nothing to do with the technicalities of the law. I hope I can put this before your Lordships as quite a simple matter. This is no question of civil action. It is true that, occasionally, people are concerned in a civil action where their reputations are at stake. More often, however, money is at stake. In the great majority of cases the fight is a fight between two insurance companies. I am not talking about the small matters which occupy so much time, such as cases of accidents on the road, or actions brought to recover possession of a borne. In these fights everyone is pining for a new trial. What they want is either to obtain, or to avoid having to pay, large sums of money. Whoever would have thought that one would hear in either House of Parliament anybody say that we ought to judge our criminal law by the law which applies in civil actions. The two things are totally different. It is ignorance on my part, but though I know the maxim I do not know who is the author: Judex damnatur ubi nocens absolvitur—The judge is condemned when guilty men escape. That is not English law. If it were English law that, whenever a guilty man escaped his judge was condemned, very few judges (and my noble and learned friend would not be one of them) would escape condemnation. The whole point of the law is that you deliberately run the risk

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  of guilty men escaping in order that you may be absolutely certain that an innocent man will not be convicted.
  VISCOUNT MAUGHAM: I do not wish to interrupt the noble Lord, but is that a Latin or other maxim?
  LORD DU PARCQ: I think it is common sense and English justice.
  A NOBLE LORD: And English law.
  LORD DU PARCQ: And it is English law. It will not make it any better if I translate it into Latin. If you wanted to make sure that guilty men are always convicted, you would have to start to reframe the whole of our law. You would have first to make it possible to cross-examine a prisoner, whether he is willing to give evidence or not, to get to the bottom of things, as is the case in many Continental countries. I am not criticising these countries; it is their way. But it is not our own. You would have to permit a man's criminal record, if he has one, to be placed before the court. You would have to permit many things which we in this country have always refused to permit. I leave it there. You cannot compare—you ought not to attempt to compare—civil actions and criminal trials. In civil actions there are two litigants who are anxious to get the better of each other. In a criminal trial, there is no such thing.
  If a young man at the Bar wants to be severely criticised and put in his place by his fellow barristers, let him come in, when he has been prosecuting in Assize and has obtained a conviction, and say, "I won my case to-day." Some of your Lordships know perfectly well that he cannot commit a more terrible solecism. You never talk about "winning" a case. You never try to win a case, in the sense of fighting an action. You are representing the Crown, and the Crown is not eager for conviction at whatever price. The Crown is there only to see that justice is done, but that it is done with every possible precaution and safeguard to prevent the possible conviction of the innocent, even though some guilty persons may escape. I am sure the noble and learned Lord said this banteringly, and I do not think that he was seeking to obtain any laugh by it, but I must confess I am always pained—I feel genuinely distressed, because of my own
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  experience—when I hear it said: "One never knows what a jury will do."
  I was a Recorder for three years, a Judge for six; and I was at the Bar for almost twenty-six years. I have, in one way or another, taken part in a good many criminal cases. I will say nothing about the cases when I was at the Bar, because I was not in a position to form an impartial estimate, but certainly as Recorder and judge, I have known only one or two cases—I think, actually, only one—where I have disagreed with the verdict of the jury in a criminal case. Nobody can be a Judge in this country, whether he goes north or south, west or east, without being tremendously impressed by the essential wisdom of the men on the jury. I do not care from what class you take them. I have seen humble persons on the jury; I have seen small farmers and farm labourers, small tradesmen, wealthy men, educated men, ill-educated men—all anxious to do justice, and almost always succeeding, it seemed to me, in doing it. I do not think it is such a difficult task to say how a jury's mind would be likely to be affected.
  But let us consider what is asked for here. First, it is a fundamental change. That has been stated by the noble and learned Viscount the Lord Chancellor. I need not go further. It is a fundamental change, as the noble and learned Viscount, Lord Simon, said. What shall we gain by it? I assume that the power to order a new trial on counts on which a man is acquitted now goes altogether. That is knocked out. What is left? We are told that the power will be used sparingly; that there would be very few cases. A fundamental change, therefore, for the sake of very few cases! What do you mean by "using it sparingly"? I speak with the greatest respect to all His Majesty's Judges—I have been one myself and I have known them well—but I am always a little afraid when there arises any question of importance to the Constitution and we are told, "This is a big change in itself, but do not worry, because it will be used very sparingly." That is not the way our forefathers preserved our liberties. My noble and learned friend, the Lord Chief Justice, can answer for himself. He cannot answer for his successors in twenty or thirty years time. Nor can arty of us. We are told fiat it

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  will be used sparingly, but then we are given instances of the kind of cases in which it would be used. I am bound to say that those instances frighten me. There was the case of the detectives, convicted on a count for conspiracy, acquitted on charges of doing the acts which it was alleged they conspired to do.
  LORD LLEWELLIN: That could not arise with the Amendment.
  LORD DU PARCQ: No, it could not arise with the Amendment. But my noble and learned friend the Lord Chief Justice put that in the forefront of his argument in Committee as the sort of case where the court would like to be able to use the power. The Judge to whom he has referred so often was anxious that they should be able to use the power in such a case.
  Then there was the case of the summing up, and the wretched man who had set up an alibi. I know perfectly well that alibis are often fraudulent. I think perhaps it has been rather a disservice to some innocent people that Charles Dickens (who did much for the oppressed) wrote what he did about Mr. Weller's views on alibis. It has become a sort of stock joke, and a jury are apt to think, as soon as an alibi is mentioned, that there can be nothing in it. As I have sometimes pointed out to juries, we can all visualise cases where, if we were suddenly charged with an offence on a particular day, much the best way of being able to get off, and perhaps the only way of getting off, would be to prove an alibi. I am bound to say that I do not think a case in which a man puts forward an alibi and where the chairman, in an unfortunate blunder, says: "This alibi must be nonsense, because the billiards rooms were closed on Sunday," is a strong case for saying: "Well, how unfortunate it is that that man"—who had put forward a defence which may have been a good defence, and had it "torpedoed" by an entirely wrong argument—"cannot be tried again." It does not make me regret it a bit. I know nothing about the man. All I know is that I am bound to presume him innocent until he is proved guilty, and that he has not had a fair trial.
  It has been said that the man who is tried for a criminal offence is a lucky fellow nowadays, because eventually he is likely to get all his money provided. I
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  am not at all sure, if he is a person of moderate means, that he will not be very much out of pocket in the end. No man, even in civil actions, gets all his costs. He gets an order for some of them, but he does not get them all. Are the Court of Criminal Appeal to distinguish between a man who gets it all done for him, because he is poor, and the man who does not get all his money back, because he is wealthier? Are they going to say to the poor man: "You need not trouble; you will not need to pay anything out of your own pocket"? We are assuming that the man undergoes a trial. He has the terrible wrong inflicted on him—not purposely, but still inflicted on him—of some unfairness in the trial. And possibly, because of that unfairness, the Court of Criminal Appeal say: "You have been wrongly convicted." But he has suffered it. For anyone who is innocent to stand in a dock and hear the word "Guilty" pronounced must be one of the most terrible experiences to be imagined. He has gone through that; he has been done an injustice. We are told that the Court of Criminal Appeal ought to be able to say—in a very few cases, so that we are not talking about any great evil, if it is an evil—"You must go back and go through all this again, and perhaps next time you will be lucky." That does not appeal to me at all.
  Then it is said: "Why worry? There are new trials already." I would like to say a few words about that. I have not statistics, as my noble and learned friend has, but I can quote my own experience. First of all, every lawyer, and everybody who has anything to do with these things, detests new trials. I think everyone who has been at the Bar, or on the Bench, knows that a new trial is a great nuisance to everybody, and that in a new trial it is not easy to secure that justice is done. Obviously, the evidence is stale. The witnesses do not remember what took place. They have to be cross-examined: "Did you not say something else on the previous occasion?" Some witnesses may have left the country, and may be unavailable; and others may be dead. They are all necessary for a fair new trial. We have to pay for all things, and this is the price we pay, because we have what I believe to be (I will not argue it now) a thoroughly sound rule in this country, that there must be a unanimous

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  verdict. Having that rule, you must occasionally have a disagreement, and you must occasionally have a new trial. But the man who is tried a second time under such circumstances has never gone through the agony of having an unfair and unjust conviction, and of having to go to the Court of Criminal Appeal to have it set aside.
  I can give some slight statistics from my own experience—three years a Recorder, and six years a Judge. I think my memory is accurate when I say that in that time in criminal cases I had only one disagreement. That was at Dorset. I remember it well. The case had taken rather a long time, and it had to be retried, Lord Finlay, who was then a Judge, went down to Dorset and tried it again, and there was another disagreement. Then, of course, the case was not pursued. But that sort of occurrence is very unusual So far as I was concerned it was as unusual as the kind of case which was cited to us last as an example of a case crying out for a new trial—that of the woman whose counsel did not arrive. In 99 cases out of 100, I think the presiding Judge would have found some way of seeing that that woman was represented by counsel. Anybody who has experience of the courts will know that it is the rarest thing in the world for a court to proceed to try the case when the prisoner can honestly say: "I have briefed counsel, and for some reason he is not here." It is strange to me. I have no doubt that there was a perfectly good reason for it, but is so rare an occurrence that for us to legislate on an occurrence of that kind would be entirely wrong.
  I have taken too much of your Lordships' time, and I will say only one final word. All Courts of Appeal, my noble and learned friend said, have this power. I have dealt with our Court of Appeal already, but may I just for one moment consider other cases? What about Scotland? Parts of this Bill refer to Scotland. This clause does not. To be on the safe side, and to be sure that I was right, I asked my noble and learned friend Lord Normand, who has been Lord President of the Court of Session: "Have you any power to order a new trial in Scotland?" The answer was "No." Not a murmur has come from Scotland saying that they would like power to order a new trial.
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  On the contrary, I understand that they are shocked at the suggestion. I was going to quote the technical term in Scotland, but as my noble and learned friend Lord Macmillan is here, I am afraid to say it. But there is a phrase which means that a man has borne his trial——
  LORD MACMILLAN: Tholed his assize.
  LORD DU PARCQ: Tholed his Assize. Ask any Scot, if he knows, anything about it: "Do you have new trials in Scotland?" and he will tell you that a man has "Tholed his assize"—that he can never be tried again. In Northern Ireland there are no new trials. There I took advantage of the knowledge and learning of my noble and learned friend Lord MacDermott, who has been a Judge in Northern Ireland. They do not have new trials; but not a whisper of complaint has come from Northern Ireland. I do not know why it is. Is it that the Scottish Judges do not make mistakes, or that the Scottish juries do not make mistakes? They are perfectly content. Must vie in this country, where we have been proud to think that our system of criminal law—although it may sometimes allow a guilty person to escape—leads the world, now resign to Scotia ad and to Northern Ireland the task of holding to these old principles which have endured so well and worked so well for so long?
  6.0 p.m.
  LORD LLEWELLIN: My Lords, as I have an Amendment down on this clause, perhaps your Lordships will allow me to say a few words. I assure you that I shall not be long. When I first saw this clause dealing with new trials, I thought that it made a fundamental alteration in our law, because it allowed the Court of Criminal Appeal to order a new trial in the case of a man who had been acquitted. That would have been a fundamental change in our law I put down an Amendment, and I am glad to see that a better one has been put down by the Lord Chancellor which exactly covers my point.
  What we have to consider now is the clause with the Lord Chancellor's Amendment added to it, because we hear from the noble and learned Lord, cord Goddard, that he does not propose to press his Amendment. Therefore, I should think there would be no division of feeling

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  in this House that the Amendment of the Lord Chancellor—and, of course, if that is accepted I shall not move mine—will be added to this clause. That will have the effect that no man who has been adjudged innocent on a count can be ordered to be retried on that count. That was the position about which I was concerned when we discussed this matter on the Committee stage. In regard to the rest, I do not see that we are making, in principle, any fundamental alteration. What happens in the case of a man who has been convicted, whether of a minor misdemeanour or, indeed, of an indictable offence before a court of summary jurisdiction? He appeals, and his appeal goes to the Appeal Committee in Quarter Sessions, or to the Recorder if he is convicted in a borough. That is a new trial, a new trial with all the evidence heard again. It happens on an indictable offence just as often as it does on a summary offence.
  LORD DU PARCQ: Not an offence that has been tried on indictment.
  LORD LLEWELLIN: One which has been tried summarily.
  LORD DU PARCQ: It is a little ambiguous.
  LORD LLEWELLIN: At any rate, the man has been tried on an offence which is an indictable offence, although he has been tried summarily. Why does he have this new trial before the Recorder or the Appeal Committee? He has it because he has asked for it, and nobody under this new clause could be sentenced to a new trial unless, in effect, it was adjudged that he asked for it. He has been convicted, and asks that something shall be done about his conviction. At the present moment, the Court of Criminal Appeal can only either uphold it or quash it. It is suggested now that, in appropriate cases, the court should also have the power to order a new trial. There are at the present time a number of cases where new trials have to be ordered. I heard of a case the other day where, very stupidly, a chairman of a court mentioned to the jury in his summing-up—when the whole of the evidence had been called on both sides—that the court was to disregard the accused person's previous conviction, about which nobody had said a word until
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  that moment. As a result, counsel for the prosecution rose immediately to his feet and asked that there should be a new trial before another jury. A new trial was granted. That was before the jury had given a verdict, and the man had not been convicted. All the difficulties about a new trial occurred. Why on earth we should be more tender-hearted about a man who has been convicted, rather than a man who has not yet been convicted, I cannot for the life of me understand. If that error had not been noticed by counsel for the prosecution at that moment, why, later on, should not exactly the same course have been taken by the Court of Criminal Appeal?
  I do not see that there is any really fundamental change proposed. I was horrified to think that we were to allow any court to have the power to order a man to be re-tried upon a count on which he had been acquitted. If the Amendment of the Lord Chancellor is not accepted, I shall vote against the clause, because that, to me, is absolutely fundamental. But if we exclude that kind of case, by adopting the Amendment of the Lord Chancellor, I can see no harm in this clause. As I would have supported it had my own Amendment been moved, so now I shall certainly support it if the Amendment of the Lord Chancellor is inserted. There is only one thing I would like to comment upon—because I think it is rather an occasion—and that is that the whole of the five speeches so far made on this Amendment have, oddly enough, been made by those who obtained their experience of the law on the Western Circuit.
  VISCOUNT SAMUEL: My Lords, I do not rise to take any part in this debate, because I have no qualifications for doing so. I rise merely to put a question which perhaps may be answered by some subsequent speaker. My question is this. It is the practice of the courts that, if a man on trial has a criminal record that record should not be made public until after the jury have decided upon their verdict. That is universally approved. If there is power to have a man re-tried after such a record has been made public on the first occasion, would that not be a departure from one of the main principles of our criminal jurisprudence? If it is wrong in the first case that his criminal record should be made public

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  before the jury come to their verdict, would it not be equally wrong that he should be liable to be tried by a jury who are already familiar, or might be familiar, with his criminal record because it had been made public at the first trial? It may be said that in such a case, for that very reason, the Court of Criminal Appeal would not order a re-trial. But that would mean that in two exactly similar cases, if a man had a criminal record and was a bad man he would not be liable to be re-tried, while if he had no criminal record he would be liable to re-trial, which would seem to be an undesirable inconsistency.
  6.9 p.m.
  VISCOUNT TEMPLEWOOD: My Lords, I should not have intervened in this great battle of lawyers, if it were not for the fact that for once in my life I find myself in some disagreement with my noble friend Lord Llewellin. I am against this Amendment for the reason that I am against the whole clause. So far as I am concerned, I feel it necessary to vote against the Amendment, or at any rate to abstain, and then to vote for the omission of the clause when it is moved later. I do so for two reasons, which I can put in almost two sentences. In the first place, I cannot see the justification for the inclusion in this Bill of this Clause. It was never in the original Bill. So far as I know, nobody ever mentioned it in another place. It has nothing to do with the main object of the Bill, which is the reform of our administrative methods for dealing with crime and delinquency. It has no more justification for being in this Bill than had Clause r, upon which we had a long discussion some weeks ago, and on which many noble Lords asked the question, "Why have you put this clause, which really has nothing to do with the object of the Bill, into the Bill?" On that account I think it is unfortunate that, since the debate in another place on the Second Reading, a clause of this kind has been inserted in this Bill. I say that, whatever may be the merits of it, if we are to make a change, let us make it in a separate Bill. Let us look into it from every angle.
  My only other observation is this. I am not sure whether the noble Viscount, Lord Samuel, was called to the Bar or not——
  VISCOUNT SAMUEL: No.
  VISCOUNT TEMPLEWOOD: He and I are the only two members of your Lord -ships' House who have ventured into this debate who are not lawyers. As a layman, I ask myself: Is it worth making any change at all, when obviously there is no demand from the public for it? Nobody during these discussions has said a word in favour of it from this point of view, so far as I know. Nobody in SCOT-land seems to think it necessary; nobody in Northern Ireland stems to think it necessary. For these very short reasons, I think the wise course for your Lordships' House to take would be to omit the clause and not trouble about any minor Amendments.
  6.13 p.m.
  VISCOUNT MAUGHAM: My Lords, I think it is as well, after so much Common Law has been resounding through the House, that your Lordships should hear a little of the quiet reasonableness of Equity. I am unable to understand—and I am sorry that I am unable—why this clause should not be inserted in the Bill. This is a Bill which relates to the administration of justice, and I cannot see why this power, which is an important feature in our system of justice, should not be put in here. However, that is for the House to decide. If the House do not like it, of course it can be removed.
  I am unable also to understand why the noble and learned Lord who addressed your Lordships against the clause is so indignant with it. I was very much impressed by something which was said when this Bill was first introduced. One would have thought from the way in which my noble friend Lord du Parcq addressed himself to this clause, that nothing of this sort had ever been known before. That is an utter and complete mistake. In moving the Amendment to the Bill, the noble and learned Viscount the Lord Chancellor told us that it was the fact that in Australia, in Canada, and in New Zealand, the corresponding court has, and has had for many years, the power to order new trials. Those countries may be remote, but they are not small, unknown, uncivilised countries; and I cannot for the life of me see how it can be open to anyone to talk of this clause as if it were utterly unreasonable, with those facts staring them in the face.

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  And the matter does not stop there. After all, the United States of America is a very big and important country, with a large population and a tremendous idea of civilisation. The courts there have this power, and it does not shock people on the other side of the Atlantic that there should be power to direct a new trial if a case goes before the Court of Criminal Appeal.
  Speaking as a lawyer with, I am sorry to say, more experience than any other lawyer in your Lordships' House, I feel bound to say that I see nothing unreasonable in this clause and nothing unjust in it. If it is a matter of personal experience of Courts of Criminal Appeal, I would remind your Lordships that there is an extraordinary weight of authority in favour of the clause being inserted. Take the case of Mr. Justice Travers Humphreys. There has not been in our day any other Judge who has anything like the experience that that Judge has had; and I would add that nobody has ever had a higher reputation as a Judge of criminal cases, and nobody is better fitted to sit in the Court of Criminal Appeal than that learned Judge. We have had read to us, in strong and forcible language, the Court's view that this clause is badly needed in the administration of justice. I could say a number of other things, but I do not want to keep your Lordships. It is a complete mistake, however, to think that there should never be a new trial. Your Lordships have heard from the Lord Chief Justice about cases where there has to be a new trial because the jury disagree, but you may also bear in mind—
  VISCOUNT SIMON: With great respect, I do not think the noble and learned Viscount could have understood the proposition I ventured to advance, and which nobody will dispute. What I said was that if a prisoner has once been convicted of an offence by a competent court, there is no case in this country in which he can be put on trial a second time. That is all.
  VISCOUNT MAUGHAM: I am afraid I was not thinking of my noble and learned friend at all. I was thinking of another speech that had been made. But if he says that, and challenges me, I must say with great respect that I do not think he is accurate. Up to a comparatively recent time it was not at all uncommon to have
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  new trials in cases of misdemeanour—which, as we know, are just as serious, in many instances, as cases of felony. I venture to think that there are other errors in my noble friend's speech. Perhaps I may mention, for instance, the case where one member of the jury has been ill, or is unable at the time of the delivery of the verdict to give his verdict. In those cases there has to be a new trial.
  VISCOUNT SIMON: But there has been no conviction.
  LORD DU PARCQ: And there has been no trial.
  VISCOUNT MAUGHAM: If my noble friend likes to chop logic in that manner—
  LORD DU PARCQ: Unless there is a summing up from the Judge and a verdict from the jury, of course there has not been a trial—only a partial trial.
  VISCOUNT MAUGHAM: It depends, if it is a case of a death. The man may die after or in the course of the summing up. But that is not a point which is very worthy of consideration. As an ordinary common-sense person I think that the man is tried if he goes into the dock, hears all the speeches made and sits there before the jury, and the jury are sworn. That is being tried in the ordinary sense and I shall continue to maintain that, even in the face of the disagreement of my noble and learned friend opposite. I do not want to take up your Lordships' time further on this topic. I venture to say that the notion that there is to be a re-trial is not a very serious one, because we constantly have re-trials in other cases. I would add that the notion that this is a new clause, open to all sorts of risks and chances, is one that will not stand, in face of the fact that some of the most eminent English-speaking countries in the whole world have had this clause for many years, without any of the risks with which we have been threatened.
  6.20 p.m.
  LORD OAKSEY: My Lords, in a few sentences I want to support the speech of my noble and learned friend the Lord Chief Justice. My noble and learned friend Lord du Parcq said that this was not a question of counting legal heads. I quite agree with him. But I think that it is a question of counting legal experience. When the House hears that the Lord

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  Chief Justice and Mr. Justice Humphreys, who sit continuously in the Court of Criminal Appeal, as the noble and learned Viscount on the Woolsack has said, say that they feel urgently the need of this power, I think that that is a matter which your Lordships' House ought to take most seriously into consideration. When I speak of the experience of the Judges, I should like to confess that, although I sat as a Judge of the King's Bench probably longer than anyone else in your Lordships' House, I have had little experience in the Court of Criminal Appeal, simply because I happened generally to be on circuit. Unless one is constantly a member of the Court of Criminal Appeal, one does not see the need for this provision. It is only experience in the Court of Criminal Appeal which, as the noble and learned Viscount the Lord Chancellor has said, enables one properly to advise the House on a matter of this sort. Therefore, I feel that the view of the Lord Chief justice and of Mr. Justice Humphreys is entitled to the greatest weight.
  Then are only two other points upon which I wish to speak. I should like to reiterate the argument which was put forward by my noble friend Lord Llewellin. It seems to me an extraordinary thing that you should feel so tender-hearted towards a man who has been convicted as not to allow him to be re-tried, when you allow every man in whose case a jury have disagreed to be re-tried. It seems to me to be a complete confusion to put forward that argument. There is only one other point with which I wish to deal. That is a matter which was raised by the noble Viscount, Lord Samuel. It is perfectly true, as he said, that a man's convictions will be brought out after the verdict of the jury. It is conceivable that someone may have read them in the papers, although they are not as a rule reported in the papers, or that someone may have been in court and heard them. In such cases, the Court of Criminal Appeal, if they had the power, would order that such a trial should be held at some other Assize in some other part of the country where it was almost incredible that any member of the jury would have heard of the previous convictions of the person re-tried. For these reasons and the other reasons that have been given, I support the view of the Lord Chief Justice.
  THE MARQUESS OF SALISBURY: My Lords, I do not propose to enter into a discussion where so many eminent legal luminaries have already expressed their views, but I want to explain the course that I propose to adopt, for it may be of some assistance to others if they find themselves in the position that I am in. After listening to an extremely weighty and interesting debate, I personally have come to the conclusion that I agree with the views which were expressed by the noble Lord, Lord du Parcq. I think that very powerful arguments can be put forward on the other side but, to my mind, the speech which the noble and learned Lord made represented what I regard as the general spirit of British justice as we have known it in the past, and with which I personally am completely satisfied. I therefore propose to vote for the omission of the clause. But others who are in the position that I am in may find themselves in a certain difficulty over the Lord Chancellor's Amendment. It may seem somewhat illogical to vote for an Amendment to clause which we are subsequently proposing to delete. But I have been thinking this matter over and I have come to the conclusion that, in spite of all that illogicality, I shall vote for the Lord Chancellor's Amendment, because that is in any case an improvement upon the existing wording of the clause. In the unhappy event of tie Lord Chancellor's Amendment being accepted and the deletion of the clause not being accepted by the House, we shall at any rate be rather better off thin we are at present. For that simple reason, that is the course which I propose to take. I thought that I world explain it to your Lordships because we are all in a situation this evening in which we may have to take action which may seem somewhat illogical.
  THE LORD CHANCELLOR: My Lords, I do not know whether the noble Lord, Lord Goddard, went so far as to drop his Amendment to my Amendment.
  LORD SCHUSTER: My noble friend, Lord Goddard, for reasons which he gave your Lordships' House has been obliged to leave at this time of the evening. He expressed his willingness to accept the Lord Chancellor's Amendment and not to move his own.
  On Question, Amendment agreed to
  VISCOUNT SIMON VISCOUNT SIMON moved to delete Clause 36. The noble and learned Viscount said: My Lords, I beg to move to leave out Clause 36, as amended.
  Amendment moved—
  Leave out Clause 36.—(Viscount Simon.)
  Resolved in the affirmative and Amendment disagreed to accordingly.
  THE LORD CHANCELLOR: My Lords, it might be to your Lordships' convenience if I were to inform your Lordships that I think the best thing we can do, in view of the fact that we have spent a good deal of time on this matter, is to sit on until half past seven, and to adjourn then until nine o'clock.
  6.39 p.m.
  VISCOUNT TEMPLEWOOD VISCOUNT TEMPLEWOOD moved, after Clause 40, to insert the following new clause:
  Person convicted of personal violence to pay compensation.
  " . Where any person is convicted by a Court of summary jurisdiction or a Court of Quarter Sessions or Assize of an unprovoked assault or an offence in which personal violence was used without just cause upon any person whereby that person suffers personal injury or material loss such court may order the convicted person in addition to any other sentence or penalty imposed upon him to pay such compensation to the victim of such assault or violence as appears to the court to be appropriate having regard to the extent of the injury or loss suffered and of the means of the person convicted."
  On Question, Whether Clause 36, as amended, shall stand part of the Bill?
  Their Lordships divided: Contents, 38; Not-Contents, 21.

  CONTENTS

  Jowitt, V. (L. Chancellor.)

  Braintree, L.

  Macmillan, L.

  Carrington, L.

  Morrison, L.

  De La Warr, E.

  Cherwell, L.

  Newall, L.

  Iddesleigh, E.

  Chorley, L.

  Oaksey, L.

  Lucan, E.

  Crook, L.

  Pakenham, L.

  Fairlie, E. (E. Glasgow.)

  Quibell, L.

  Elibank, V.

  Greville, L.

  Rochdale, L.

  Maugham, V.

  Hare, L. (E. Listowel.)

  Rockley, L.

  St. Davids, V. [Teller.]

  Hatherton, L.

  Saltoun, L.

  Trenchard, V.

  Henderson, L.

  Schuster, L.

  Hutchison of Montrose, L.

  Shepherd, L. [Teller.]

  Ailwyn, L.

  Kershaw, L.

  Waleran, L.

  Ammon, L.

  Llewellin, L.

  Walkden, L.

  Amwell, L.

  Lucas of Chilworth, L.

  NOT-CONTENTS

  Salisbury, M.

  Swinton, V.

  du Parcq, L.

  Templewood, V.

  Gifford, L.

  Fortescue, E.

  Holden, L.

  Munster, E. [Teller.]

  Balfour of Burleigh, L.

  Mendip, L. (V. Clifden.)

  Blackford, L.

  Rennell, L.

  Monsell, V.

  Broadbridge, L.

  Rochester, L.

  Samuel, V.

  Broughshane, L.

  Stanmore, L.

  Simon, V. [Teller.]

  Darwen, L.

  Wolverton, L.

  The noble Viscount said: My Lords, this is a clause that I move not only on my own behalf but also on behalf of the Magistrates' Association. They and I take the view that more should be done by way of compensation for the victim of a personal attack. We think that particularly now, when under this Bill we are considering a number of new methods for dealing with crime and delinquency, and when, for instance, we are making it less likely that young offenders should be imprisoned. Changes of that type make it all the more necessary to tighten up our other methods, provided that they fall in with the general principles of the Bill. We think that much more might be done in regard to compensation. At present I understand that the law on the matter is somewhat complicated. Restrictions are put upon sentences of compensation of this kind. We wish to make it easier for a court to insist, where an offender has the means of making a payment to his victim, that more extended compensation should be demanded from him than can be demanded at present. It is a simple issue.
  Obviously, compensation could not be got out of an offender who had no money. But we believe that amongst the many offenders who now crowd the courts, there are quite a number who could afford a great deal more compensation than it is at present possible to extract from them. That being so, I think that a clause of this kind would be a useful addition to the Bill. Courts will impose sentences of this kind only in suitable cases, but I think that this further extension of their powers is undoubtedly needed. The time may come, as I hope it will, when the whole question of earnings in prison will be reconsidered, and when prisoners will be able to earn more from their work in prisons. I should certainly regard it as very necessary, when that time comes, that out of their earnings, where it is possible, a suitable sum should be taken to compensate the victim of the crime. But that relates to the future. For the present, I move this clause as giving a further power to courts that I believe would be useful to complete the general provisions of the Bill. I beg to move.
  Amendment moved—
  After Clause 40, insert the said new clause.—(Viscount Templewood.)
  LORD SALTOUN: My Lords, I have an Amendment down for consideration at a later stage and there is also one standing in the names of my noble friend Lord Schuster and myself. Both relate to this very point. I would rather deal with my own Amendment on its own merits, because it is quite independent. But I should like to support Lord Templewood's Amendment, which I think is a very proper one.
  LORD WOLVERTON: My Lords, I also would like to support the noble Viscount's Amendment. I think it would greatly improve the Bill. As the noble Viscount said,—and rightly, I think—there are certain people who come before the criminal courts who could pay compensation to those on whom they have inflicted personal violence. I should certainly like to see this Amendment made to the Bill.
  6.43 p.m.
  LORD CHORLEY: My Lords, the Government cannot accept this Amendment. The noble Viscount said, in the course of his speech, that it was in accordance with the general principles of the Bill.
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  I am sure your Lord ships will agree that it is even more important that it should be in accordance with the law of the land; and that it is not. It is a general principle of our law that questions of compensation and damages to individuals fall within the province of the civil courts and are dealt with by those courts; not by the criminal courts. In every case of the kind which the noble Viscount is aiming at in this Amendment, right of action will lie in the civil courts, and I think your Lordships will agree that those are the proper places where such claims should be dealt with. There are, of course, two or three small instances in which a court which has tried a criminal case can award a limited sum by way of compensation. In a case, for example, of malicious damage, a court may award compensation to a person up to £20 That is to say, an individual convicted of committing malicious damage may be ordered to pay compensation within that sum. Again, in cases of assault, where the accused is put on probation, instead of punishing him in another way the court may make an order for him to pay a sum of money the limit of which, by a provision in Clause 11 (2) of this Bill, has been increased from the old limit, which was £25, to £100. But these are small and exceptional cases.
  The effect of the noble Viscount's Amendment would really be to make an alteration in the law—I am not quite sure how far it would go—which I think would be of a very unfortunate character. The noble Viscount envisages that a court which has been primarily concerned with dealing with a criminal case, a case in which the whole of the evidence has mainly been directed to the question of whether the prisoner is guilty or not, should then become involved in a problem which, as many of your Lordships know, may be an exceedingly difficult one—the problem of how much injury the victim of the crime has suffered. The consideration of that matter might well call for evidence of quite a different kind from that which has been given—the evidence for example of doctors. Such evidence has to be given on an entirely different basis and, normally speaking, it is dealt with by a Judge in completely different surroundings. Under the Amendment, a decision might well be given at a time when it was quite impossible to discover low much injure the victim had suffered. A criminal case ought to be

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  brought quickly, but a man who is injured as the result of assault may well be suffering from complications which will persist beyond the time of the trial, and that is a matter which, clearly, ought to be gone into and considered in a different atmosphere. This new clause, in effect, asks that a Judge who has been trying a case which, on the face of it, may be a heavy case, should, at the end of a long trial, during which his mind has been directed to different matters, proceed to access a sum by way of compensation. I think your Lordships will agree that that is not a responsibility which ought to be put upon him. It would be exceedingly difficult for him to deal with a problem of that kind at that stage in the trial.
  The noble Viscount's Amendment, moreover, introduces a number of new concepts, such as "unprovoked assault," which is a term quite unknown to the law, and it is not at all clear what alteration in the Common Law of the land is introduced by an Amendment of this kind. It seems to us to be quite misplaced. Any man injured in this way has a right to bring a claim and to get compensation in a proper action which is developed for that purpose, an action in which the evidence can be effectively and properly gone into and a sensible result arrived at in accordance with the ordinary methods of the law.
  LORD SALTOUN: Will the noble Lord forgive my interrupting him? Do I understand him to say that a man who has been convicted of the crime of assault can also be sued by the victim for damages?
  LORD CHORLEY: Certainly he may, and very frequently such men are so sued. The noble Viscount's proposal is to give a sort of alternative remedy. It does not make it at all clear whether after compensation has been granted under this clause the injured man might not be able to bring proceedings in the civil court. Therefore I say it is unfortunate, and that this Amendment would cut across the general principles of English law. I hope that the noble Viscount, in view of what I have said, will feel that the Amendment is not appropriate and will not press it.
  VISCOUNT TEMPLEWOOD: My Lords, I can only speak again with the leave of
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  the House. I must make this comment upon the speech to which we have just listened, which is the kind of unsympathetic legalistic answer which gets nobody anywhere. I know perfectly well that you can go to a civil court, but a large number of magistrates tell me that that is totally inadequate. There are many of these cases in which young men, with a heap of notes in their pockets, may well be called upon summarily to make a payment. It is clear to me that the noble Lord does not realise the human side of this problem at all, and he has fallen back on the purely legalistic argument that neither convinces me nor seems to meet the broad issue of the proposition I have urged upon him. But if that is the mood of the noble Lord and the Government and the Home Office, I am not prepared to press the matter further. But I would say it is symptomatic of what I have noticed over and over again during these discussions, that there are a certain number of people who are anxious not to make experiments. I want to see quantities of experiments made in our penal methods. This might have been one of them, but the noble Lord has shown that he is unsympathetic to this attitude. Therefore, I beg leave to withdraw my Amendment.
  Amendment, by leave, withdrawn.
  Clause 41 [Order of Speeches]:
  LORD CHORLEY LORD CHORLEY moved, in subsection (2), to insert at the commencement:
  "Notwithstanding anything in section two of the Criminal Evidence Act, 1898,"
  The noble Lord said: My Lords, this is in the nature of a drafting Amendment. Under the Criminal Evidence Act of 1898 a prisoner was given an opportunity of being called as a witness. If he adopts that course, he must go into the box at once. In this Bill that is varied and his counsel may address the court before calling him as a witness. Obviously, there is a discrepancy between the two and it is necessary to insert these words to make it clear that, notwithstanding the earlier Act, this new procedure is to be effective. I beg to move.
  Amendment moved—
  Page 44, line 1, at beginning insert the said words.—(Lord Chorley.)
  On question, Amendment agreed to.
  6.54 p.m.
  LORD SALTOUN LORD SALTOUN moved, after Clause 43 to insert the following new clause:
  "—. If any person has sustained physical injury through unprovoked assault or personal violence by any other person, in consequence of which the victim of such assault or violence has incurred some extraordinary expense or suffered some permanent disablement, he shall be entitled to obtain compensation in the like manner and by the like procedure as is laid down in the Riot (Damages) Act, 1886."
  The noble Lord said: My Lords, I beg to move the first Amendment standing in my name.
  I would like to say, first, that this Bill, which is going through Parliament with the assent of all, is in itself a very big experiment. To a great extent it diminishes the sanctions which are given to the courts in respect of crime. I know that it has been argued on the part of the Government that these decreased sanctions will not lead to an increase in crime, but that opinion seems to me to be at variance with the Motor Spirit Regulations, which impose very severe sanctions on persons who might conceivably be innocent, the idea being that the public at least will hold them guilty and that severe sanctions will lead to a diminution of crime. I do not think the Government can sit on the fence. They must come down on one side or the other. The noble Lord, Lord Chorley, has just criticised the use by the noble Viscount, Lord Templewood, of the word "unprovoked" in a clause of a Bill of this nature. I have relied on the Riot (Damages) Act to give me the procedure I want. The Riot (Damages) Act was enacted because it was held that the local police authority are responsible for preventing riots and for damage caused by riots. I submit to your Lordships that a local police authority are equally responsible for preventing crimes of assault, for preventing injury to the bodies of His Majesty's subjects.
  The Riot (Damages) Act says—I read only the words important to me, but I am not altering the sense:
  "Where…property…has been injured…or destroyed, by any persons riotously "——
  and I would remind your Lordships that three persons entering a shop together are regarded as committing a riot,
  "…compensation…shall be paid…to any person who has sustained loss…but in fixing the amount of such compensation regard shall be had to the conduct of the
  226
  said person, whether as respects the precautions taken by him…or as regards any provocation offered…"
  I submit to the noble Lord, Lord Chorley, that this is a distinct support of the words "unprovoked" in the clause of the Statute and that the noble Viscount, Lord Templewood, was perfectly right in putting it in. And I am very glad that I also have included the word. I have had it suggested to me that you cannot have a civil action proceeding on a matter winch is a criminal matter. We have had the noble Lord's assurance that you can have a civil action for damages out of an assault that has been tried as a crime. But the Riot: (Damages) Act, in Clauses 3, 4 and 5, lays down a very simple procedure whereby such damage can be proved and assessed, I submit to your Lordships, therefore, that so far as that goes there is no lack in my Amendment of proper formality, and I have kept it in order.
  I have a further point: which I think is worth making. Most of us live in fortunate neighbourhoods. We do not live, as the noble Lord, Lord Oaksey, said in the districts of the revolver and the "cosh"; but assaults for robbery—and others, to my mind, of an even graver nature—are daily occurrences, and are increasing. I submit that my Amendment will assist the local police authorities. It will draw their attention to the fact that it is much more important to use the police for checking and punishing crimes of this nature than to arrest people for comparatively simple matters like driving across traffic lights. It appears to me that if matters develop much further in the direction in which they are going at the present moment, you might very well have associations of citizens uniting together defend themselves. I think that would be a proper thing. If citizens cannot obtain from the Government of their country the protection which is due to them, it will be forced upon them, but when such a thing does occur, it always occurs with grave danger to the ordinary people of the country. I beg to move.
  Amendment moved—
  After Clause 43, insert the said new clause.—(Lord saltoun.)
  LORD SCHUSTER: My Lords, as my name stands in support of the next Amendment down in the name of the noble Lord, Lord Saltoun, perhaps it would save time if I were to say a word

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  now. The House will realise that there is this difference between the clause of the noble Viscount, Lord Templewood, and that of my noble friend Lord Saltoun and myself, in that Lord Templewood's Amendment contemplates the recovery of compensation from the person who has done the damage, and Lord Saltoun's and my Amendment contemplates the recovery of compensation from the local authority. There is a further difference between Lord Saltoun's two Amendments—the one where he is alone, and that where I am with him—in that in the first he does not require a conviction as a condition precedent to the recovery, whereas in the Amendment in which I am supporting him the conviction is a condition precedent. The noble Lord, Lord Chorley, whatever else he says, and however unkind he may be to us in regard to these Amendments, cannot say that they are intended to effect a revolution. They propose nothing but a development of what the Riot (Damages) Act has already laid down. That Act, of course, operates only when there is a riotous assembly. As my noble friend Lord Saltoun has already pointed out, three persons form a riotous assembly. There is no reason in logic why you should stop at three persons, two persons or any other particular number. If the goods or the person of His Majesty's subjects are put in peril, and the police authority are unable to protect them, it is no revolution to say that the police should pay, because it follows on the precedent of the Act. I do not think it is necessary for me to talk at length about this. I merely make the distinction, and suggest that, in logic, there is no answer to the proposal which my noble friend Lord Saltoun has made.
  LORD CHORLEY: My Lords, I regret to say that we cannot accept this Amendment, or the one which follows it. It is, of course, very much like the Amendment which the noble Lord, Lord Saltoun, moved on the Committee stage. I confess that, personally, I have more sympathy with this than the other Amendment, because this is aimed at a case where probably there will not be any possibility of obtaining compensation from the actual perpetrator of the crime. I should say perhaps that the Amendment could not be accepted from the drafting point of
  228
  view. The noble Lord would probably say that this is a purely legalistic argument. Of course, it it. It would be quite impossible to determine what is meant by "some extraordinary expense," which is quite a new phrase, although no doubt it would be possible to get over that by adopting some other form of words. The difference between the present Amendment and the one which the noble Lord moved in Committee is that he now links the matter up with the Riot (Damages) Act, 1886. That is a very exceptional Act. It was passed, of course, in order to put on the police authority the obligation of making good damage which had been sustained in cases where they had failed to prevent persons from riotously and tumultuously assembling together, and where, as a result, indiscriminate damage to property was done. As a rule, in a riot of that kind, if it once gets going and the police do not stop it at the crucial moment, then a great deal of damage is done, and nobody quite knows who did it, because the crowd disperses and you are left with the damage.
  The sort of case at which the noble Lord's Amendment aims is not that case at all. It is the case where in nine cases out of ten the police could not possibly do anything to prevent the injury from taking place. It would cover the case of a row in the house over the breakfast table, where the husband loses his temper, hits his wife over the head with a teapot and causes her serious injury. The police obviously could do nothing to prevent that.
  LORD SALTOUN: I beg the noble Lord's pardon. Nobody could say that his wife was not provoking!
  LORD CHORLEY: Nobody could possibly say that that was a case in which the policeman would be able to get there in time to prevent it happening. So it would be with practically every one of the cases which the noble Lord's Amendment would cover. In other words, he is, in effect, asking that the community should provide compensation in cases where people are unfortunate enough to suffer injury. I myself cannot draw any distinction between the type of case covered by this Amendment, and the type of case where a man trips over the kerb, falls down and breaks his leg. In both cases it is most unfortunate, and it may

  229
  be that eventually the community will say that that is a kind of injury for which the community will provide compensation. It is impossible to see any distinction between the two types of case.
  LORD SALTOUN: The noble Lord will not mind my interrupting, because I am sure he wants to answer me completely. I should like to point out that where a person trips over, falls down and breaks his leg by reason of the fault of somebody else, he has the right of action against that somebody else. The community has taken over the defence of His Majesty's lieges, and if they are not defended the community is at fault.
  LORD CHORLEY: He has exactly the same action where he is knocked over by anybody, if it is the other person's fault. But the noble Lord is asking that anybody who sustains an untoward accident of life——
  LORD SALTOUN: It is not an accident.
  LORD CHORLEY: Of course it is. I am sure the noble Lord does not suggest that it is not an untoward accident of life. He suggests that wherever there is an untoward accident of life the community should compensate the man. It may be that eventually we shall reach that stage, but I suggest it would be quite wrong to lay it down in a small class of cases of this kind, and not carry it into the other affairs of life. Therefore I hope the noble Lord will see that it is quite a revolutionary proposal that he is putting forward, and that he will not press the Amendment.
  VISCOUNT TEMPLEWOOD: My Lords, the noble Lord, Lord Chorley, has instanced certain cases of difficulty. There are other cases of difficulty upon which I myself feel that some action is needed. I have particularly in mind the cases of young men who escape from Borstals and from open prisons, who break into people's houses, who steal perhaps quite a lot of things, and who place the neighbourhood in a state of terror, with constant robberies taking place. During the course of these debates it has been suggested that that ought to be met by making certain Borstals enclosed rather than open institutions.
  LORD CHORLEY: The noble Lord is aware that there is an Amendment down
  230
  later to that effect in the name of the noble Lord, Lord Cranworth.
  VISCOUNT TEMPLEWOOD: Exactly I am not going to argue that question now. What I want to say is that I think that is the wrong way to deal with it. I think the whole basis of Borstal treatment is putting responsibility upon the offenders and taking the risk of their sometimes escaping. At the same time, that is no consolation to the people in the neighbourhood who get assaulted and have their goods stolen. In cases of that kind I think the State has a direct responsibility. It is the result of our policy, of what is called "open prisons" and "open Borstals." The State has a responsibility, and I understand there ate certain cases in which the State pays compensation.
  LORD CHORLEYIn practically all cases.
  VISCOUNT TEMPLEWOOD: Is that so? Can the noble Lord assure me OF that? The information which I have, from people living in the neighbourhood of these Borstal institutions, is that they have not received full compensation in all cases. If the noble Lord can tell me that in cases of this kind, where a prisoner escapes and commits an attack upon someone, or a theft, the State pays full compensation, then I am perfectly satisfied with the present position; but without that assurance I think something urgently needs to be done.
  LORD SCHUSTER: My Lords I can only speak again with the leave of the House, but I thought I was saving time when I alluded to the second Amendment as well as to the first. The second Amendment may be open to all kinds of criticism, but it is not open, to the criticism which the noble Lord, Lord Chorley, made. It lays down that the 'tight to compensation occurs only when there has been a conviction for robbery with violence, wounding with intent to do grievous bodily harm, or any assault occasioning actual bodily harm—a conviction in each case. These stories about the wife and the teapot are really irrelevant. The Amendment is directed to what I tried to say before: that where a crime has been committed and, as a consequence of it, damage has been suffered by a victim, that victim should be compensated out of the local rates. I do

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  not want at the moment to argue the point about Borstal, because I shall be moving an Amendment later on behalf of my noble friend Lord Cranworth and there is a good deal to be said about it on both sides. But I do want to protect my second Amendment from the criticisms which have been made upon it.
  THE LORD CHANCELLOR: My Lords, it may perhaps help if I say a word on this matter. I have ascertained that, so far as escaped prisoners are concerned, in all cases where the Prison Commissioners are satisfied that the claim is well founded, they meet it. But there have been no cases of personal injury. It is usually stealing clothes, or what you will, when the man gets out, which is generally his first step. My feeling about that is this. I confess that I have considerable sympathy with the point which the noble Viscount, Lord Templewood, put, but I have no sympathy with either of these Amendments, which are the relevant things, for the very reasons which the noble Lord, Lord Chorley, gave. After all, the principle of law is that the police are supposed to keep law and order and, therefore, if a riot breaks out, you have some claim against the police, because the hypothesis is that they have fallen down on their duty. It is reasonable enough, in those circumstances, to make a claim against the police. But what on earth is the justification for making a claim against the police for every single assault that takes place? How on earth can any police force in the world prevent it? As the noble Lord said, if it occurs in the privacy of the house, what has it to do with the police?
  I see no sense whatever in imposing upon the police the obligation to pay damages, for ultimately it falls upon the taxpayer. Suppose somebody without any money at all commits an assault. Why should the police pay, or why should the taxpayer pay? I see no justification for that at all. I can quite understand the point of the earlier Amendment of the noble Viscount, Lord Templewood, that it might be desirable, as part of the punishment, to impose that compensation should be paid to the victim; but if the offender has no money, then you cannot impose it. Here is the noble Lord, Lord Schuster—and I always like to catch him out in these revolutionary proposals
  232
  which he puts forward from time to time—making the wholly revolutionary proposal which has, if I may say so with great respect to him and to the noble Lord, Lord Saltoun, no logical basis at all. In the circumstances, whatever may be said about the naughty deeds of escaped prisoners, I am bound to tell your Lordships that we must reject both this Amendment and the next which the noble Lord, Lord Schuster, and the noble Lord, Lord Saltoun, share. I am bound to say that I think they are quite illogical.
  LORD SALTOUN: I should like to say a word on the second Amendment, so with your Lordships' leave I will withdraw the first.
  Amendment, by leave, withdrawn.
  7.15 p.m.
  LORD SALTOUN LORD SALTOUN moved, after Clause 43, to insert the following new clause:
  ". Where any person has been convicted of any robbery with violence, wounding with intent to do grievous bodily harm, or of assault occasioning actual bodily harm, the court by whom such person is convicted may order that the person so robbed, wounded or assaulted shall receive compensation in respect of any personal injury thereby caused to him, and the compensation shall be assessed, recovered and paid in the same manner as compensation under the Riot (Damages) Act, 1886, and that Act shall apply accordingly."
  The noble Lord said: My Lords, I would like to say a word upon this Amendment. In the first place, I must say that I am astonished to learn that assault can be an accident. I am delighted, because if I should so far forget myself as to "sock" someone on the jaw, it never occurred to me that I could produce the defence that it was an accident.
  I would like to say, in regard to this Amendment, that it is perfectly true that the duty of the police is to keep law and order—that was the point made by the noble and learned Viscount. In this case there is a conviction for an offence which it was the duty of the police, so far as possible, to prevent. The point is that the Amendment is not directed against the police—it is against the local police authority. If the local police authority use their police force for detecting offences which, in the judgment of ordinary men and women, are not regarded as serious crimes, and thereby weaken the defence of the general public against crime; or if not having a large enough police force for

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  the purposes for which the police are required, they omit to strengthen that force or to take the proper measures for recruiting that force, then I submit that there is an obligation which they have failed to carry out. I humbly submit to a much greater master of logic than myself, the noble and learned Viscount on the Woolsack, that there is a logical case there. I beg to move.
  Amendment moved—
  After Clause 43, insert the said new clause.— (Lord Saltoun.)
  LORD CHORLEY: My Lords, I have already indicated that we cannot accept this Amendment, and I do not think your Lordships will expect me to add anything more to what I have already said.
  LORD SALTOUN: My Lords, I do not propose to press this Amendment, and I beg leave to withdraw it.
  Amendment, by leave, withdrawn.
  Clause 45:
  Approved probation hostels and homes.
  (2) The Secretary of State may make rules for the regulation, management and inspection of approved probation hostels and of approved probation homes; and such rules may in particular provide that no person shall be appointed to be in charge of an approved probation hostel or home unless the Secretary of State has consented to his appointment.
  VISCOUNT SAMUEL VISCOUNT SAMUEL moved to add to subsection (2):
  "Provided that the Rules shall not prohibit the making of such an appointment in case of emergency without the previous consent of the Secretary of State, but may in that case require notice of the appointment to be given immediately to the Secretary of State and enable him, if he thinks fit, to require the appointment to be terminated."
  The noble Viscount said: My Lords, I desire to move this Amendment on behalf of my noble friend Lord Reading, although in a slightly different form from that which appears in the Marshalled List. This point was raised by me on behalf of my noble friend on the Committee stage. It deals with a small question of administration with regard to appointment of managers. I explained the point on the Committee stage, and I do not propose to detain your Lordships now, because I understand that this Amendment is accepted by the Government. The noble and learned Viscount the Lord Chancellor said very kindly on the Committee stage that the Government would
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  give the matter consideration. It has been discussed by the parties concerned, and an Amendment agreed in principle. That Amendment is now on the Order Paper. It has been suggested that some slight Amendment might be made with advantage, and at the suggestion of the Government I move the Amendment in the form in which it stands on the typewritten sheet.
  Amendment moved—
  Page 47, line 14, at end insert the said proviso.—(Viscount Samuel.)
  THE LORD CHANCELLOR: My Lords, on behalf of the Government I am quite prepared to accept this Amendment. I think the wording we have now makes it satisfactory.
  On Question, Amendment agreed to.
  Clause 47:
  Remand centres, detention centres and Borstal institutions.
  47.—(1) The Secretary of State may provide remand centres detention centres and Borstal institutions for the detention of persons required to be detained therein under this or any other Act.
  LORD CHORLEY LORD CHORLEY moved, in subsection (1) to omit all words after "provide" and insert:

  "(a) remand centres, that is to say places for the detention of persons not less than fourteen but under twenty-one years of age who are remanded or committed in custody for trial or sentence;

  (b) detention centres, that is to say places in which persons not less than fourteen but under twenty-one years of age who are ordered to be detained in such centres under this Act may be kept for short periods under discipline suitable to persons of their age and description; and

  (c) Borstal institutions, that is to say, places in which offenders not less than sixteen but under twenty-one years of age may be detained and given such training and instruction as will conduce to their reformation and the prevention of crime."

  The noble Lord said: My Lords, during the Committee stage of the Bill a number of noble Lords pointed out that there was no definition of one or two of the expressions used in the Bill. I think the noble Lords, Lord Templewood and Lord Llewellin, were amongst them. My noble and learned friend on the Woolsack said we would see if anything could be done to repair those omissions. The two phrases in particular were "remand centres" and "detention centres" and

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  we have put the definitions which your Lordships see on the Order Paper. We thought it might be useful at the same time if a definition of "Borstal institutions" were given, so we have added a definition of them as well. The clause which I am asking your Lordships to accept will therefore include definitions of these three different types of penal institutions. I beg to move.
  Amendment moved—
  Page 47, line 31, leave out from ("provide") to end of line 34 and insert the said paragraph.—(Lord Chorley.)
  LORD LLEWELLIN: My Lords, I am very glad that the Government have acceded to our request to have some definition in the Bill of remand centres and detention centres. I confess that I think the definition of a remand centre is rather a feeble skeleton, compared with that given in the Amendment in my name at the bottom of page 5 of the Marshalled List. Be that as it may, we do not want to pursue this matter at any great length. But I would say, especially in regard to the detention centres, that I think it is all-important that those who have the duty from time to time of sending persons to these different places should be informed by a Home Office circular what kind of treatment will be given when the persons get there. It is fatal if the courts are not kept closely informed as to what kind of treatment will be given. Of course I realise that in the case of detention centres the whole scheme has not yet been worked out, but I hope that when the Prison Commissioners have to apply their minds to what kind of treatment it is intended to give at these places, all courts will be circularised on the matter.
  LORD CHORLEY: I am glad to give the noble Lord the assurance he asks for on that point.
  LORD LLEWELLIN: Then we can be quite happy about this skeleton definition. I thank the Government for having met us in this way. I shall not move the Amendment standing in my name at the bottom of page 5.
  On Question, Amendment agreed to.
  VISCOUNT TEMPLEWOOD: My Lords, this Amendment is consequential
  236
  upon the series of Amendments concerning attendance centres upon which the House came to a decision the other day. I beg to move.
  Amendment moved—
  Page 47, line 34, at end insert—
  ("(2) The Secretary of State may provide attendance centres, that is to say places at which offenders of not less than twelve but under twenty-one years of age may be required to attend, in pursuance of orders made under section (Attendance at an attendance centre) of this Act, on such occasions and at such times as will avoid interference so far as is practicable with their school hours or working hours, and be given under supervision appropriate occupation or instruction; and for the purpose aforesaid the Secretary of State may make arrangements with any local authority or police authority for the use of premises of that authority.")—(Viscount Templewood.)
  On Question, Amendment agreed to.
  Clause 51:
  Rules for the management of prisons, remand centres, detention centres and Borstal institutions.
  (3) Rules made under this section may provide for the training of particular classes of persons and their allocation for that purpose to any prison or other institution in which they may lawfully be detained.
  VISCOUNT TEMPLEWOOD: My Lords, this is a similar Amendment. It is intended to complete the provisions that will be necessary for the setting up of attendance centres, and is therefore consequential. I beg to move.
  Amendment moved—
  Page 50, line 20, after ("centres") insert ("attendance centres").—(Viscount Templewood.)
  On Question, Amendment agreed to.
  LORD SALTOUN LORD SALTOUN moved, in subsection (3), after "persons" to insert
  "or for their earning by their labour support for their dependants."
  The noble Lord said: My Lords, the whole object of this Bill is to make prisons more effective in reforming people who have gone wrong; and obviously the people who are most susceptible of reform in that way are those who are really decent people. One of the things that decent prisoners have told me affects them most when they first go to prison is the thought of what will happen to their wife and family. The answer, I know, is that the Assistance Board will

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  help. We learned in this debate on the last occasion of the very low earnings of prisoners. The noble Lord, Lord Chorley, said the reason for that was the high overheads entailed by the maintenance of the prison. I submit that those high overheads are really a charge on the community for having criminals, and that the first and most important step you can take in the reclamation of the really decent prisoner is to give him a chance to earn money for his wife and family, and if possible to keep them off the Assistance Board. If you deprive a man of that chance when you put him in prison you will demoralise him. I submit that it should be within the power of the Prison Commissioners to make rules to take that into account and to be able to arrange that prisoners should be enabled at the earliest possible moment to take that step towards the rehabilitation of their character. I beg to move—
  Amendment moved—
  Page 50, line 28, after ("persons") insert ("or for their earning by their labour support for their dependants").—(Lord Saltoun.)
  THE LORD CHANCELLOR: My Lords, I cannot deal with this Amendment between now and seven-thirty. I suggest that we now adjourn until nine o'clock.
  [The sitting was suspended at half past seven and resumed at nine o'clock.]
  LORD WOLVERTON: My Lords, I am sorry to take an opposite point of view to that of my noble friend Lord Saltoun on this matter. I agree with what has been said before, that prisons cost a good deal of money to keep up and that this is a matter of economics. If the prisoner—as we hope is the case—is able to earn some money and keep a little for himself in prison, and the rest is set against the cost of maintaining the prison, I cannot see where there is any difference from what is proposed here. In any case, the prisoner's wife would have to be kept by the Public Assistance Board and as the cost of maintenance in both cases would come out of State assistance, I cannot see any difference between what is proposed here and the present position. For those reasons, I do not agree with the Amendment.
  THE LORD CHANCELLOR: My Lords, since I have to take sides in this matter between the two noble Lords, I am
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  bound to say that I agree with the latter. I have expressed before, and I express again, my belief in the importance of work for prisoners. By "work," I mean useful and constructive work, not merely the rather degrading form of work of digging a hole and filling it up again. I think that we would all agree that you cannot differentiate between different classes of prisoners and give them different wages. Take two cases, where you have a man sentenced for a short time and a man sentenced for a long time. Consider the class of work which those two men will do. Yon may put the long-term man on to a form of work which requires a good deal of training, in the hope that in due course he will be able to acquit himself adequately; but, with the short-term man, that is impossible. By the time that he has begun to learn all about his work, he will be gone from prison. It would be unfair to have different rates of earnings for prisoners in that way. In short, you cannot apply outside standards to prison labour. That is the first difficulty I see.
  On the other hand, of course, by the form of these words
  "or for their earning by their labour support for their dependants"
  it is quite obvious that you cannot differentiate between the man who has a lot of dependants and the man who has very few. Therefore, I cannot accept this Amendment. But my refusal to accept this Amendment, as I have said before, does not mean that I am not in favour of prisoners having responsible work to do and earning some money for doing it. If you are going to compare outside labour with inside labour, however, and if you are going to deduct overheads and that sort of thing, the overheads are so heavy that the man who earns the largest sum of money will, in fact, receive nothing at all. Therefore, this seems to me to be quite an impracticable proposition. However, I appreciate what the noble Lord has in mind. He wants to stress the importance of prisoners having work to do in which they can take a pride and which will help them when they come out to earn their living. If the noble Lord does not mean that—if I may so with the greatest respect—he ought to mean that. In so far as he either does or ought to mean that, I am on his side altogether; but, if he means anything else than that,

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  it is quite impracticable. The rates for various classes of labour must obviously alter; and they do. He will know that outside the prison one class of work is more highly remunerative than another. It would never do to introduce that sort of situation in prisons, and for prisoners employed to earn quite differing rates of pay. I cannot accept this Amendment, though in rejecting it I want to assure the noble Lord that I am on his side on the question of prisoners doing work, and responsible work at that.
  LORD SALTOUN: My Lords, if I may say one word in withdrawing this Amendment—because I do not want to press it—I do mean more than the noble and learned Viscount has mentioned. Although I mean what he has mentioned, I mean more in this way—and if I am wrong perhaps he will tell me afterwards. The first preoccupation of a decent man when he gets into prison is as to what is to happen to the wife and children he has been forced to abandon. If the answer is: "You are a prisoner; that is nothing to you. There is Public Assistance for them," you are pushing that man down hill. If he has any sort of work, whatever be the pay, as long as it is something that is materially helpful to him (say two or three pounds a week, or whatever it may be that he can by diligence earn for them) then you have that moral factor in his life to help him forward instead of pushing him down the hill. When he first gets into prison you are helping to keep him up. I mean that, just as much as I appreciate the helpful effect on the moral system of steady work in prison. The real thought of most men is as to their family. With regard to what my noble friend Lord Wolverton said, I think his observations are all on my side. Why not give these men a moral peastick? I do not wish to press my Amendment, but I have ventured those remarks because I know that my noble and learned friend is just as interested in this matter as I am, and I do not think he will tell me, when I go outside, that I am wrong.
  Amendment, by leave, withdrawn.
  Clause 58 [Transfers from prison to Borstal institutions and vice versa]:
  9.8 p.m.
  LORD CHORLEY: My Lords, there are three Amendments to Clause 58 which
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  all go together. The first two are merely preparatory drafting Amendments to the third, which is in itself really in the nature of a drafting Amendment. It seeks to deal with the position which might arise where a Judge or Chairman could not be consulted by reason of the fact that perhaps he had gone abroad, or was ill, or something of that sort. Therefore, we insert the words "where practicable," which I am sure your Lordships will think are necessary.
  Amendment moved—
  Page 54, line 1, at beginning insert ("if")—(Lord Chorley.)
  LORD LLEWELLIN: My Lords, I think it was a great improvement to have this clause inserted, and so long as the words "where practicable" mean only "where they are available" (which is more or less what the noble Lord has said), that is perfectly all right. I quite see why those new words should be put in. It is important that in all cases where it is at all practicable the Judge or Chairman should be consulted.
  On Question, Amendment agreed to.
  LORD CHORLEY: I beg to move.
  Amendment moved—
  Page 54, line 1, leave out ("may if he"). (Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY: I beg to move.
  Amendment moved—
  Page 54, line .4, leave out ("and after consultation") and insert ("he may, after consultation where practicable").—(Lord Chorley.)
  On Question, Amendment agreed to.
  Clause 79 [Interpretation]:
  LORD CHORLEY: My Lords, this is a consequential Amendment. I beg to move.
  Amendment moved—
  Page 68, line 24, at end insert—
  "'Detention centre' has the meaning assigned to it by section forty-seven of this Act."—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this is in the nature of a drafting Amendment. The Lord Chief Justice, during the Committee stage, raised the question of the meaning of this term, so we thought it might be useful to put these words in by way of definition. I beg to move.
  Amendment moved—
  Page 68, line 42, at end insert—
  "'Offence the sentence for which is fixed by law' means an offence for which the court is required to sentence the offender to death or imprisonment for life or to detention during His Majesty's pleasure."—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this is a consequential Amendment. I beg to move.
  Amendment moved—
  Page 69, line 7, at end insert—
  "'Remand centre' has the meaning assigned to it by section forty-seven of this Act."—(Lord Chorley.)
  On Question, Amendment agreed to.
  First Schedule [Discharge and Amendment of Probation. Orders):
  LORD CHORLEY: My Lords, this is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 73, line 28, leave out ("appears to the court to be") and insert ("is").—(Lord Chorley.)
  On Question, Amendment agreed to.
  Second Schedule:
  Borstal Training.
  1. A person sentenced to Borstal training shall be detained in a Borstal institution for such period, not extending beyond three years after the date of his sentence, as the Prison Commissioners may determine, and shall then be released:
  Provided that the Prison Commissioners shall not release any such person from a Borstal institution before the expiration of twelve months from the date of his sentence unless required to do so by directions of the Secretary of State under this Schedule.
  9.13 p.m.
  LORD LLEWELLIN LORD LLEWELLIN moved, in the proviso to paragraph 1, to substitute "nine" for "twelve" The noble Lord said: My Lords, we had some slight controversy about a similar Amendment to this during the Committee stage, when I moved that we should maintain the six months and not increase to twelve months the minimum time at which a boy at Borstal could be released without the Secretary of State, under the special provision, having to go into the matter. As the noble Lord who replied to me on that occasion did so in terms which I did not entirely appreciate, I put down a question to the Home Office, because the figures which I gave during Committee stage and
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  which Lord Chorley said were inaccurate were figures I had obtained from the Borstal Assocation, who, after all, know more about what happens to Borstal boys than most other organisations in this country and they supported my case. Having put that question down and received an answer, I am now proposing that we should substitute nine months for twelve months. Frankly, the period between six months and nine months does not matter very much, but the period from nine months to twelve months does. A very large number of people are automatically released during that time. There may be people who are released after the six months.
  I know of one case which occurred at an institution at which my brother was governor. A boy was sent to Borstal for a term of three years because he had told the police that he had been robbed, when in fact he had not been robbed at all. He certainly led the police up the garden, and under the somewhat new offence that was created (or was it merely that an old one was revived?), the offence of committing a public mischief, he was sent to Borstal for a period of three years. That boy ought never to have been sent to Borstal at all, and at the earliest possible moment my brother recommended that he should be released. The visiting committee agreed, the Home Office agreed, and out he went. If that kind of case could easily be dealt with by the Secretary of State, obviously it would be. For the vast majority of cases which are released between nine and twelve months, however (and from the answer the noble Lord gave me, they amount to quite an appreciable number) the extra term is all important. We ought not to flood the Secretary of State's desk with some 500 to 600 applications. I understand that the Home Office do not want to keep any of these boys in Borstal longer than the time it takes to make them good citizens, and in the confidence that this Amendment will be accepted, I beg to move.
  Amendment moved—
  Page 74, line 12, leave out ("twelve") and insert ("nine").—(Lord Llewellin.)
  THE LORD CIIANCELLOR: My Lords, on the last occasion the noble Lord, Lord Llewellin, and the noble Lord, Lord Chorley, got rather at cross purposes, and, knowing both as I do, I feel sure

  243
  there must have been some misapprehension about the matter. I think there will be no misapprehension between the noble Lord, Lord Llewellin, and myself now. I think he will say that my answer is wholly admirable. My answer is as follows: I will accept this Amendment.
  LORD CHORLEY: My Lords, may I say before the question is put, that when we checked afterwards the figures which the noble Lord, Lord Llewellin, gave last time, we found they were correct—they related to the Borstal at Usk.
  LORD LLEWELLIN: My Lords, I am much obliged to the noble Lord and thank him very much for what he has just said.
  On Question, Amendment agreed to.
  LORD SCHUSTER LORD SCHUSTER moved, after paragraph 4 to insert:
  "5. If any person while detained in a Borstal institution shall escape therefrom and while so escaped shall commit a crime for which he is convicted at Quarter Sessions or Assizes, he shall be detained in a Borstal institution constructed and regulated with a view to the prevention of persons escaping therefrom."
  The noble Lord said: My Lords, on behalf of my noble friend Lord Cranworth, I beg leave to move the Amendment which stands in his name. If this is one of the revolutionary Amendments which the noble and learned Viscount the Lord Chancellor accuses me of moving, I must put its revolutionary character down to my noble friend. But I must say that I heartily agree with the principle embodied in it.
  I do not know that the facts require much elaboration. My noble friend, Lord Cranworth, would have spoken about Hollesley Bay. I will speak for the most part about Portland. It is notorious as regards both these institutions that the inmates do break out. There is nothing to stop them breaking out and, having broken out, they commit all kinds, of offences against the inoffensive population round the places where the institutions are. To that the reply is given that it is necessary for the reformation of these people that they should have an opportunity of breaking out. Knowing our own infirmities, I know quite well that we find the prodigal son and the sinner who is supposed to have repented more congenial than the ninety-and-nine just persons who need no forgiveness; but my
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  sympathies are the other way. They are entirely with the small shopkeepers in Portland and Weymouth whose premises are continually broken into and who live under—in the language of hyperbole, which is the language used to me—a reign of terror. I know that to enlightened and romantic souls like the noble Lord, Lord Chorley, this sort of argument does not appeal; but to the plain common man who keeps a shop in Portland, it is a very serious matter.
  It is said also that that state of affairs is amply dealt with by compensation. But compensation is no kind of recompense to the person who suffers in this way. In the first place, it is extremely difficult to assess compensation. In the second place, unless it is assessed on principles quite different from those which apply to most compensation, it will not amount to an indemnity. Apart from all that, is it not preposterous that His Majesty's Government should collect, in a thickly populated area such as Portland, or in an area such as Hollesley Bay, large groups of young men, criminals who are accustomed to committing petty crimes, and leave them there to get out whenever they like and commit more crimes, petty or otherwise? This is not an academic question. Not a Quarter Sessions that I can remember has passed at Dorchester at which some of these boys, at least, have not been charged—and, on some occasions, charged after having twice escaped. Furthermore, it appears to be the habit of the Prison Commissioners, when Borstal boys have broken out and committed these crimes, and have been tried and sentenced to imprisonment, to send them back to Borstal. It is rather late, and I believe that the House is fully seized of the question. Revolutionary as I may be, I venture to press this Amendment so far as I possibly can. I shall not be satisfied—and I think I can say this also for my noble friend Lord Cranworth—until something more appropriate to the situation is obtained than a promise that compensation will be assessed by the Governor of Portland, or the Governor of Hollesley Bay, as some recompense to the people who suffer in this way. I beg to move.
  Amendment moved—
  Page 75, line 9, at end insert the said paragraph.—(Lord Schuster.)
  LORD LLEWELLIN: My Lords, I would like to say a word or two on this Amendment. I am one of the great believers in the open Borstal. I believe that for the young man sentenced for the first time to Borstal training the open Borstal is the right form of cure. But when that form of cure has failed, I believe you have to take further steps. In the case of a boy who has broken out of the reformatory school, who has gone to Borstal and broken out from there, and broken into a number of houses, and then gets sent back, further steps should be taken. I am not sure, however, that this is a provision that we should insert in this Bill. I think that by administrative action the Home Office should have one of these Borstals (we now have a number of them; I have been to about eight or nine myself, but I forget how many there are altogether) in which, although they have a considerable amount of freedom inside the bounds of the Borstal, they will not have the opportunities of escaping.
  I know only too well, as does the noble Lord who moved the Amendment, that in the Assize Court and Quarter Sessions—certainly at the Court of Quarter Sessions, at which the noble Lord and I both sit—there are nearly always three or four cases of boys who have broken out of the Borstal institution at Portland, and who have broken into three, four or five places and taken goods or money. It is almost getting to the stage where the people of that very stalwart island (I know they are stalwart people, because I commanded their Territorial battery for some sixteen years) will take the law into their own hands. That is the kind of thing one does not want to happen. These boys break out from the Portland institution; and they do it equally from Hollesley Bay, where they do not get the best type of boys. I am not talking about the Usk or Hewell Grange boys, who ought in every case to be kept in an open Borstal. It is for the fellows who have proved themselves not capable of staying in these open Borstals that I believe the Home Office will soon have to engineer a Borstal where, althought the inmates can have the full amount of training, they cannot have that full freedom of being completely outside prison walls.
  I am not sure that this is an appropriate provision to put into the Bill, but
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  I am quite certain that, from the point of view of keeping the people of the country as a whole in favour of Borstal treatment—which I hope they always will be—we should try to restrict as much as possible the number of these outbreaks which take place. Where a boy has shown himself to be an escaper and a boy who breaks into houses, I think we should have Borstals to which he could be sent—places in which the good training could go on but where he would not have an opportunity of breaking out and breaking into people's houses, thus causing discontent with the whole basis of the Borstal training system. Although this is perhaps not the right place for these words, I think that by administrative action the Home Office and the Prison Commissioners will soon have to take a similar step to that envisaged in this Amendment.
  LORD SALTOUN: My Lords, I would like to support this Amendment. I would put the case of one of these shopkeepers who, in a fit of pardonable exasperation, might knock one of these lads on the head. If he did, he would be arrested and he would come under all the laudable provisions of this Bill. Every precaution would be taken that he would be treated fairly, and that no improper advantage would be taken of him because he was accused of a crime and because he came under the criminal law. But the shopkeeper may well say: "Before this I was paying rates for the police; I was paying for my protection, and I did not get it." Do you not think it is more important to treat one who is a law-abiding peaceful citizen with fairness than one who quite obviously is not? I have much pleasure in supporting my noble friend's Amendment.
  LORD CHORLEY: My Lords, I am afraid that we cannot accept this Amendment. The noble Lord who moved it made—among a number of statements with which I did not agree—two, at least, which I can accept wholeheartedly. One was that it was getting late, and another was that it is a great hardship to householders and shopkeepers in the neighbourhood of these Borstal institutions where this sort of thing happens. I must say that I thought it a little unfair to say that this sort of consideration did not appeal to a romantic sort of person.
  LORD SCHUSTER: I did not mean that.
  LORD CHORLEY: I did not think the noble Lord meant it altogether seriously, but there is a bit of sting in that, and I am sure your Lordships will sympathise with me in rebutting it a little.
  LORD SCHUSTER: I withdraw the statement.
  LORD CHORLEY: This is an argument substantially against the Borstal system, because it is a proposal to establish what is in effect a prison for these lads. As the noble Lord, Lord Llewellin, pointed out, the openness of the Borstal system is essential to it. My information is that the great majority of these lads who go off in this way, go off in the early stages, while they are still restless and have not begun to feel the good effects of this training. The great majority of them, after they have been returned to Borstal, settle down reasonably well, and the number of second cases is not as substantial as the noble Lord, Lord Schuster, suggested. I think the noble Lord rather over-painted the picture, suggesting that on these occasions the great majority of the lads go off in this way, and that they do it not only once, but twice and thrice. My information is that it is not really quite so bad as that, although we certainly would not minimise the fact that it is a serious thing.
  I do not want to go over the ground again, because this Amendment, as your Lordships appreciate, is substantially the same as that which the noble Lord, Lord Cranworth, moved on the previous occasion. I mentioned then that lads who do give this trouble are put into a special wing at Wands-worth, where, as a matter of punishment, they are kept under rigid conditions for some time, before they go back to training—because Borstal is essentially a training system. On the whole, the effect has been found to be good. If we were to adopt this Amendment, I think your Lordships would agree that the great value would go out of the Borstal training, which is a disciplined training. As the noble Lord, Lord Cranworth, pointed out on the Committee stage, a large number of these lads have made good. Many of them received commissions in the Army in the last war, and made a valuable
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  contribution to the war effort, which they probably would not have done had they been sent to prison.
  I hope your Lordships will agree that the Government are right in resisting this Amendment—although there is a great deal in what the noble Lord, Lord Llewellin said. I shall have great pleasure in putting his suggestion before my right honourable friend, who will no doubt give it full consideration.
  LORD SCHUSTER: I am, I think, entitled to speak again——
  LORD CHORLEY: I do not think you are.
  LORD LLEWELLIN: My Lords, on a point of order, surely the noble Lord is entitled to reply.
  LORD SCHUSTER: I hope I may still call the noble Lord who sits on the Benches opposite my noble friend in spite of the chasm that divides us, for our friendship is a long-standing one. I did not think, when I said he was of a romantic disposition, that I was planting a deep sting; but if so, I withdraw the sting.
  LORD CHORLEY: It was his suggestion that I had no sympathy with the unfortunate householders and shopkeepers that I did not like.
  LORD SCHUSTER: My noble friend's sympathies are with the boys in Borstal; mine are with the shopkeepers in Portland. I did not suggest that he does not sympathise with the shopkeepers—and I am prepared to sympathise with the Borstal boys. But I do not think that the noble Lord actually met the weight of the complaint. I have never suggested, by the way, that the majority of Borstal boys break out. I do not know how many break out; all I know is that when I was sitting at Dorchester at the last Sessions but one, we had before us eight boys, I think, who had broken out; and of these certainly some, I think the majority, had broken out more than once. Those are facts, and not mere statistics. It is surely curious if it were just an exception. But in fact it is not an exception. I therefore still think that to collect boys of this kind and put them down there so that they can wander out, and when they wander out send them back to wander out again, is not a proper method of administration. I should, if it were

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  possible, press this Amendment. It is not my fault that it is late. But I shall not divide the House, nor perhaps would there be any great point in my doing so. I do not want the noble Lord to think that this is an Amendment to which we do not attach great importance and to which people outside this House also do not attach great importance. In all the circumstances, however, seeing that the hour is now so late, I am bound, with your Lordships' permission, to withdraw the Amendment.
  Amendment, by leave, withdrawn.
  Fifth Schedule [Administrative Provisions as to Probation]:
  9.36 p.m.
  LORD CHORLEY: My Lords, there are two Amendments here which go together. They are concerned with the arrangements for superannuation allowances and gratuities to probation officers which were, until last year, dealt with by the Criminal justice Act, 1925. Last year Parliament passed a special Act, the Probation Officers (Superannuation) Act, which takes up these provisions, so that the provisions in the earlier Act are no longer necessary. This is an Amendment to repeal them. I beg to move.
  Amendment moved—
  Page 80, line 31, leave out from ("Schedule") to ("and") in line 35.—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY: I have already dealt with this Amendment. I beg to move.
  Amendment moved—
  Page 81, line 11, leave out from ("under") to ("an") in line 13.—(Lord Chaney.)
  On Question, Amendment agreed to.
  Ninth Schedule [Consequential and Minor Amendments]:
  LORD CHORLEY: My Lords, there are two Amendments here which go together. For the most part, they are consequential upon an Amendment which was moved to Clause 13 and was explained then by the noble and learned Viscount the Lord Chancellor. I do not think that I need go over that again. However, I point out also that this proposed Amendment does bring in the Central Criminal Court, which was already included in the Ninth Schedule, but the Amendment there was not correctly drafted. That has been put
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  right in this rather long Amendment, which takes up two points. Therefore, it is really consequential upon the earlier Amendment, and is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 88, line 22, leave out from ("thirty-two") to end of line 25 and insert ("for the words from the beginning to 'recognizances as aforesaid' there shall be substituted the words' within fourteen days after any fines, issues, amerciaments, penalties or recognizances are set, lost, imposed or forfeited by or before a court of assize, the clerk of assize or the clerk of the Central Criminal Court, as the case may be, shall'")—(Lord Chorley.)
  LORD LLEWELLIN: Could the noble Lord tell me the difference between a fine and an amerciament?
  LORD CHORLEY: I am afraid I shall have to take advice on that question.
  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this Amendment is on the same point. I beg to move.
  Amendment moved—
  Page 88, line 26, leave out from ("words") to end of line 35 and insert ("'and clerk of the Crown respectively' there shall be substituted the words 'or clerk of the Central Criminal Court.'
  In section thirty-eight, for the words 'which if this Act had not been passed would have been certified or estreated into the Exchequer' there shall be substituted the words 'sea lost, imposed or forfeited by or before a court of assize.'; and for the words clerk of the Crown,' in both places where these words occur, there should be substituted the words 'clerk of the Central Criminal Court'").—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY LORD CHORLEY moved to insert in the Acts to be amended:

  "The Prison Act, 1877. 40 & 41 Vict. C. 21.

  In section eleven, the words 'and as to the commercial value of the labour on' shall cease to have effect."

  The noble Lord said: My Lords, this is a proposal to take away an obligation, which has been put upon the Prison Commissioners since as long ago as 1877 in the Prison Act of that year, to state the various manufacturing processes carried on in each of the prison within their jurisdiction and, among other information, to provide a statement as to the commercial value of the labour expended on these manufactures. For, quite a long time now, it has been realised that this is a completely artificial and impossible piece of
  +
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  information to provide on any sort of realistic basis which would be of use to anybody. The Salmond Commission which sat on problems of this sort before the war reported that it was only a question of making a guess at it, and that whatever basis one took in order to try and get at some sort of figure it would not amount to more than a guess. During the war this computation was given up, and it is felt now to be altogether a waste of time to continue this obligation when clerks are not easy to obtain and when nobody should be put on work which is quite useless. The object of this Amendment, therefore, is to remove it. I beg to move.
  Amendment moved—
  Page 89, line 6, at end insert the said new words.—(Lord Chorley.)
  LORD LLEWELLIN: My Lords, I am quite certain that all of your Lordships would wish to remove any source of further embarrassment between the present Government and the trade union movement, and I gather that this will help towards that end.
  LORD SALTOUN: My Lords, the noble Lord will realise that, though the results of the present system have been rather complained of by me, this is a step backwards, because what I was anxious to get for prisoners was something adequate for the labour they could actually perform.
  On Question Amendment agreed to.
  LORD CHORLEY: My Lords, this is really a drafting Amendment. I beg to move.
  Amendment moved—
  Page 96, line 8, column 2, leave out lines 8 to 10.—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY LORD CHORLEY moved, to include in the list of Acts to be amended:

  ("11 Will. 3. c.

  An Act to Punish Governors of Plantations in this Kingdom for Crimes by them committed in the Plantations.

  The words 'in his Majesties Court of Kings Bench' and the words from 'or before such commissioners' to 'same county'

  42 Geo. 3. C. 85.

  The Criminal Jurisdiction Act, 1802.

  In section one, the words 'in his Majesty's Court of King's Bench'; the words from 'found, in which information' to 'Middlesex'; and the words 'at the discretion of his Majesty's Court of King's Bench'") —(Lord Chorley.)

  On Question, Amendment agreed to.

  "The Dogs Amendment Act, 1938. 1 & 2 Geo. 6. C. 21.

  In section one, in subsection (2) after the word 'after' there shall be inserted the words 'the expiration of fourteen days from the date of the order, or, if within that period the appellant has given notice of appeal, until after' and the words from 'or until the appeal can no longer be prosecuted under the Summary Jurisdiction Acts, as the case may be' shall cease to have effect."

  The noble Lord said: My Lords, this is substantially a drafting Amendment, but perhaps I ought to say a word about it. Shortly before the war, in 1938, there was passed the Dogs Amendment Act, which was intended to protect a dog which was found by a Bench of magistrates to be vicious against its immediate destruction and to give the owner the right of appeal to Quarter Sessions. This is a right which is quite frequently used, as many of your Lordships will know, and its purpose is to prevent the dog being destroyed in the interval between the decision of the court of summary jurisdiction and the court of Quarter Sessions. Under Clause 34 of this Bill, discretion is given to Quarter Sessions to extend the time for appealing against such a conviction and the result is that the phrase which obtains in the original Act, "until the appeal can no longer be prosecuted," would now connote an indefinite period. The object of the Amendment is to restore the position as under the 1938 Act. I beg to move.
  Amendment moved—
  Page 97, line 12, at end insert the said words.—(Lord Chorley.)
  On Question, Amendment agreed to.
  Tenth Schedule [Enactments repealed]:
  LORD CHORLEY: My Lords, this is a consequential Amendment. I beg to move.
  Amendment moved—
  Page 99, line 7, at beginning insert—
  LORD CHORLEY: My Lords, this also is consequential. I beg to move.
  Amendment moved—
  Page 99, line 23, at end insert—

  ("11 Geo. 4 and 1 Will. 4. c. 70.

  The Law Terms Act, 1830.

  Section thirty-three.

  3 & 4 Will. 4. c. 99

  The Fines Act, 1833.

  Section twenty-nine.")

  —(Lord Chorley.)

  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, I beg to move the next Amendment.
  Amendment moved—
  Page 39, line 51, at end insert—

  ("19 & 20 Vict. c. 54.

  The Grand Juries Act, 1856.

  The whole Act")

  —(Lord Chorley.)

  On Question, Amendment agreed to.
  LORD CHORLEY: I beg to move.
  Amendment moved—
  Page 100, line 36, column 3, at beginning insert—
  ("In section five, the words 'or to pay' to the end of the section").—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD SCHUSTER: My Lords, this Amendment is purely consequential. I beg to move.

  ("35 & 36 Vict. C. 52.

  The Middlesex Grand Juries Act, 1872.

  The whole Act")

  —(Lord Chorely.)

  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 101, line 7, column 2, at end insert ("In section eleven, the words and as to

  ("1 & 2 Geo. 5. c. 28.

  The Official Secrets Act, 1911.

  In section ten, in subsection (2) the words 'in the High Court' and the words 'or the Central Criminal Court'")

  —(Lord Chorley.)

  On Question, Amendment agreed to.
  LORD SCHUSTER: My Lords, both these Amendments are purely consequential on the Amendment to Clause 2. I beg to move.
  Amendments moved—
  Page 102, leave out from beginning of line 6 to end of line 8.
  Page 102, leave out from beginning of line 35 to end of line 38.—(Lord Schuster.)
  On Question, Amendments agreed to.
  Amendment moved—
  Page 100, leave out lines 47 and 48.—(Lord Schuster.)
  On Question, Amendments agreed to.
  LORD CHORLEY: My Lords, this, is one of a group of Amendments which are concerned with the abolition of the Grand jury. There are about five of them. I beg to move.
  Amendment moved—
  Page 100, line 58, at end insert—
  the commercial value of the labour on'";.—).—(Lord Chorley.)
  On Question, Amendments agreed to.
  LORD CHORLEY: My Lords, this is one of the Grand Jury Amendments. I beg to move.
  Amendment moved—
  Page no 102, line 5, at end insert—
  LORD CHORLEY: My Lords, this is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 103, line 3, column 3, leave out lines 3 to 7 and insert "Sections one to ten".—(Lord Chorley.)
  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this again is drafting. I beg to move.
  Amendment moved—
  Page 103, line 55, at end insert—

  ("23 & 24 Geo. 5. c.36.

  The Administration of Justice (Miscellaneous Provisions) Act, 1933.

  In section one, in subsection (1) the words 'Subject to the provisions of this section'; and subsection (4).

  In the Second Schedule, in paragraph 4, the words 'in the case of any bill of indictment preferred under this Act'.")

  —(Lord Chorley.)

  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this is another of the Amendments relating to abolition of the Grand Jury. I beg to move.
  Amendment moved—
  Page 104, line 22, at end insert—

  ("1 & 2 Geo. 6. c. 63.

  The Administration of Justice (Miscellaneous Provisions) Act, 1938.

  In section eleven, in subsection (1) the words from 'and (b) any indictment' to the end of the subsection; and in subsection (2) the words from 'and with respect' to the end of the subsection")

  —(Lord Chorley.)

  On Question, Amendment agreed to.
  LORD CHORLEY: My Lords, this is yet another drafting Amendment. I beg to move.
  Amendment moved—
  Page 104, line 33, at end insert—

  ("1 & 2 Geo. 6. c. 21.

  The Dogs Amendment Act, 1938.

  In section one, the words 'or until the appeal can no longer be prosecuted under the Summary Jurisdiction Acts, as the case may be'")

  —(Lord Chorley.)

  On Question, Amendment agreed to.

  PUBLIC REGISTERS AND RECORDS (SCOTLAND) BILL. [H.L.]
  9.48 p.m.
  Debate resumed (according to Order) on the Amendment moved by Lord Saltoun to the Motion for the House to be put into Committee—namely, That the Bill be referred to a Select Committee.
  LORD MORRISON: My Lords, as a considerable time has elapsed since this Bill was last before your Lordships' House perhaps I may be permitted briefly to recall the reasons for its slow progress. A Second Reading was given to the Bill in your Lordships' House on January 22, and during the debate Lord Saltoun objected to Clause 2, and, to some extent, to Clause 3. The Bill passed its Second Reading and the Committee stage was put down for February 5 when, if I may say so, a somewhat one-sided debate took place on an Amendment by the noble Lord, Lord Saltoun, that the Bill should
  256
  be referred to a Select Committee. I say that it was a one-sided debate because eight of your Lordships supported Lord Saltoun and only one took a contrary view—that was myself. In those circumstances, there appeared to me to be no alternative but to move the adjournment of the debate. Perhaps I may be allowed to quote one sentence of what I said, to recall to your Lordships' memory what happened. I said:
  "In the light of the debate it seems to me, from the point of view of common sense, that the wisest thing this House can do is to allow me to move that the debate be adjourned."
  Your Lordships will remember that a month later, on February 26, I announced the Government's intention to appoint a Committee under the Chairmanship of Lord Macmillan to review further the processes of registration of writs in the Sasines Office, and, thereafter, to consider the case for introducing registration of title to land in Scotland.

  257
  The Committee have now reported on the first term of the remit, and have come to the conclusion that the proposal in Clause 2 of the Bill—namely, the future replacement of the minute book by the search sheet as guide to the record—should not be proceeded with. The Committee propose, however, some minor improvement in the procedure for registration. I need not remind your Lordships that the proposals in Clause 2 are of a highly technical nature, and they had been the subject of investigations on three occasions previously—twice by strong legal committees—and when they were included in the Bill there was good reason to think they were generally agreed. This expectation was not fulfilled, and as the result of the debate in this House the Government agreed that the matter was one for further expert inquiry. This inquiry has been undertaken with remarkable expedition by Lord Macmillan's Committee, and I should like on behalf of the Government to express our debt to Lord Macmillan for his valuable help on this abstruse subject. The matter is essentially one for the experts.
  The findings of Lord Macmillan's Committee are in disagreement with those of the Fleming Committee of 1928 and 1932. After further consideration, the Government are prepared to accept wholly the recommendations of the Macmillan Committee and have put down Amendments accordingly. In the Report of the Committee two matters are dealt with which are not within the scope of the Bill, but I should like to say a few words on them. They relate to the shortage of staff in the Register House and to the discontinuance, owing to the war, of the annual accounts showing the revenue and expenditure of the Sasines Office.
  On the first point, the amount of work of the Sasines Office measured by the intake of writs has risen steeply in the last two or three years, after a marked decline during the war; and the number of staff is below the requirements, notwithstanding that, as in the Civil Service generally, hours of work have been increased and longer periods of annual leave curtailed. As your Lordships are aware, on the one hand there is often pressure to increase the staffs of particular branches of the Civil Service to enable them more effectively to carry out their duties and, on the other hand, the size of the Civil
  258
  Service as a whole, and the calls made by it on the limited man-power resources of the country, are a frequent subject of attack. We are, however, all agreed that the delay in the registration of writs should be reduced as soon as possible, and it is hoped that it will be possible substantially to strengthen the staff of the Sasines Office in the immediate future.
  On the second point, the Government readily agree that the issue of annual accounts showing the balance of revenue and expenditure in the Sasines Office should be resumed, and steps are being taken accordingly. Having made this statement, I have only to add that I trust that it will meet with your Lordships' approval, and that the noble Lord, Lord Saltoun, may agree to withdraw his Amendment and let the Bill now proceed. The Amendments which I shall then proceed to move are all designed to bring the Bill into line with. Lord Macmillan's Report.
  LORD SALTOUN: My Lords, I am grateful to my noble friend Lord Morrison for what he has said. Indeed, I have reason for a great deal of gratitude. I want once more to express my thanks to my noble Leader, the Marquess of Salisbury, for the support he gave me on that occasion and to those noble Lords who also supported me, one of whom is here to-night—Viscount Simon. I am very grateful to him. Then is one noble Lord to whom I must give thanks but whom my thanks cannot reach. I refer to Lord Thankerton, and I could wish si quidquam mutis gratum acceptumque sepulchris accidere e nostro Calve dolore potest. If only one's gratitude could reach beyond the tomb, I would like to feel, for my own satisfaction, that that noble Lord, the death of whom so many of us deeply deplore and whose presence we shall abidingly miss, could hear the gratitude I would like to pay him on this occasion.
  The whole of Scotland will be grateful to these noble Lords, and to one noble Lord in addition—Lord Macmillan—for the work he has put in and for the extremely illuminating and clear Report, which will stand for all time as an account of the system of registration of writs in Scotland. Any noble Lord who cares to read it (I am sorry it has only been produceable in this House since half-past

  259
  three this afternoon) will get a grasp of the subject which will stand him in good stead. It is a very illuminating Report, and most beautifully written. As I say, the whole of Scotland will be indebted to that noble and learned Lord for the work he has done. It is a work which shows us the depth of the precipice over which we were nearly precipitated on February 5 last, because he has explained quite clearly—it must be clear to everybody who reads the Report—that had the Bill been passed in its then form, it might have thrown the whole of the records of Scotland into inextricable confusion. That is a matter which affects more nearly the general run of the population of Scotland than it would in England—we are all aware of our excellent system of registration. It would have gone home to every one of us.
  There are two further matters to which my noble friend Lord Morrison referred, upon which I would like to touch. One is the question of economy. The noble Lord said on Second Reading that the idea of the Bill was to effect saving in time and man-power—that is, of course, in money. If your Lordships turn to page 13 of the Report, you will find that the Register of Sasines
  "is a revenue earning department and that section 25 of the Act of 1868 requires that the fees to be drawn should not be 'greater than may reasonably be held sufficient for defraying the expenses of the said department or the improvement of the system of registration'.…"
  That means that this is not a revenue earning department. The income of the department is to be used either for cheapening the registration or for improving the service. On page 12 of the Report Lord Macmillan reports, what we all know and what is acknowledged:
  "At present the staff of the Register House is quite inadequate in number for the proper performance of its duties. The work of registration has fallen into unprecedented arrears extending to as much as seven or eight months and the public are suffering accordingly."
  Then at the bottom of page 13 the Report says:
  "From this it appears that in the years 1937–38 and 1938–39 there were surpluses of £16,127 and £14,358 respectively."
  Then it goes on to say:
  "The gross revenue for 1946–47 shows a very large increase over the figures for 1937–38
  260
  and 1938–39, indicative of a great increase in the business of the department."
  As my noble friend Lord Morrison stated, no accounts have been kept, but Lord Macmillan suggests:
  "It is improbable that they"—
  that is the expenses to be set against the income—
  "can have risen from £14,135 in 1938–39 to £62,712 in 1946–47."
  So there must still be a considerable surplus in this department. We were asked to pass this Bill for the sake of economy, because it was impossible to pay what the Government were supposed to pay for the cost of the registration of our writs in Scotland, when all the time this department is self-supporting, is making a large income to the tune of at least £16,000, and is perfectly able to pay the additional salaries for further staff to prevent the arrears extending to seven or eight months and the public suffering accordingly. I really think this is a matter to which attention should be drawn in Parliament, and I hope my noble friend Lord Morrison will ask to have it looked into.
  There is one other point I should like to make on this question. I am moved to do so because the danger from which we have escaped is so great. In his speech on the Second Reading, the noble Lord, Lord Morrison, stated to your Lordships that the General Council of Solicitors for Scotland had been consulted and had raised no objections to the proposal. That sounds very well, but I would like to state who are the General Council of Solicitors for Scotland. They are a body appointed by Statute of 1933, and although 1933 is the date when the second proposal of the Fleming Report was finally resisted by the profession, I draw no sinister deduction from that. But the General Council of Solicitors was appointed then, and it was given by Statute duties entirely connected with the discipline in the profession—purely disciplinary matters.
  I have the Statute here, and I have a great deal of information about it. However, I want to be as brief as I possibly can be. From time to time efforts have been made to increase the scope of this body, and all branches of the profession have steadily resisted it. They do not look upon it as really representing the profession. Efforts have been made all the time. Sometimes the Council have passed

  261
  resolutions granting themselves more powers, and sometimes other things have been proposed. They have always been resisted and defeated. When it is said to your Lordships that the General Council of Solicitors for Scotland have been consulted and have raised no objections, the impression given to your Lordships may be fallacious. It does not necessarily mean that this Council represents the opinion of the profession in Scotland.
  Futhermore, I have been told that the General Council of Solicitors themselves have said that they did not support the proposals in any way; that the only comment they made when the proposals were laid before them was that it was a highly controversial matter, and that they would prefer not to express any opinion on it at all. What I have said on that subject bears out what I said on the Second Reading. The constitution of councils and committees of this kind, unless they really represent the people they are suppose to represent, is merely a method of gratifying the very natural instinct for the increase of their own power by administrative departments. The most efficient departments are those which, naturally, wish to extend their power. That is a most important thing to control and check. To control and check it, I think there is no instrument in the Constitution more suitable and effective than the vigilance of your Lordships' House as it is at present constituted. That vigilance has shown itself in the past, as it has shown itself to-day, and I am grateful for the support your Lordships have given me, without which I should have been able to do nothing. I beg leave to withdraw my Motion.
  10.4. p.m.
  VISCOUNT SIMON: My Lords, may I say just one word about this, as I intervened on the occasion when this was last before the House?—although, of course, I have no qualifications whatever to speak upon this highly technical subject of Scottish procedure. It seems to me that the person who really deserves to be congratulated upon this matter is the noble Lord, Lord Saltoun. It was he who challenged the assertion that this Bill, in the form in which it was presented, would be generally approved. As a result of his argument—assisted perhaps by the argument of others—the noble Lord, Lord Morrison, very sensibly, accepted the idea
  262
  that there should be an expert inquiry. Now we have had that expert inquiry, and from Lord Macmillan, who was the Chairman, and his four or five colleagues we have had a unanimous Report.
  This is really a very strange story, about which the best thing to be said is that it is going to end quite happily; therefore, we do net want to go back to unnecessary matters and previous complaints. I ventured to say, on an earlier occasion, that I doubted whether the noble Lord in charge of the Bill could put his hand on his heart and say that he understood all its contents. With his usual candour and fairness, the noble Lord replied by saying that he was unable to put his hand on his heart and say anything of the bind. It is not a good plan to carry through Bills without understanding what they mean, and the result in this instance has been that the whole of the Bill is now to be turned completely inside out.
  I am glad that Clause 2 of the Bill is to be struck out on the Motion of the Government. That was the whole point of the controversy. If Clause 2 had stood, these things which are called minute books and printed abridgements and indexes would be discontinued—and the Macmillan Report shows that that would be a most foolish thing to do. Similarly, it would have provided that there was instead to be a separate series of search sheets according to forms to be prescribed by an-Act of Sederunt. This again is quite an impracticable proposal which could only produce confusion. The Government, however, under the guidance of the noble Lord, Lord Morrison, have behaved very wisely in saying that they had better find out from an independent Committee how the matter stands. Most sensibly the Government now say, "Let us strike out Clause 2." Indeed, they do something more. They say, "Let us take this Macmillan Committee's Report, which made a few suggestions as to how matters might be improved, and substitute those suggestions for the original proposals." Least said, soonest mended!
  Amendment, by leave, withdrawn.
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The LORD SCHUSTER in the Chair]:
  LORD MORRISON LORD MORRISON moved, after Clause 1, to insert the following two new clauses:
  Provisions as to recording in Register of Sasines.
  "2. The following provisions shall have effect with regard to the recording of writs in the General Register of Sasines—

  (a) the names and designations of the presenters of writs shall not be entered in the minute book;

  (b) each page of the minute book shall be signed by the Keeper of the Registers of Scotland or by a deputy duly authorised by him in that behalf, and no further signature shall be necessary for the authentication of the minute book; and in particular it shall not be necessary that the minute book be signed by the presenter of a writ or in the case of a writ transmitted to the Register by post by a clerk in the office of the said Keeper;

  (c) the transmission in accordance with section ten of the Land Registers (Scotland) Act, 1868, of copies of printed abridgements or minutes and indexes to sheriff clerks shall be discontinued and that section shall cease to have effect.

  Amendment of 31 & 32 Vict. c. 64. s. 6.
  3. Section six of the Land Registers (Scotland) Act, 1868, shall be amended by the substitution for the words from 'attach to his signature' to 'and thereafter' of the words 'stamp the words "by post" in the presentment book and thereafter enter.'"
  The noble Lord said: May I thank the noble and learned Viscount, Lord Simon, and the noble Lord, Lord Saltoun, for their comments? I should like to associate myself with what the noble Viscount has said, that the main credit for this is due to Lord Saltoun for the action he has taken. The new Clause 2, which has already been referred to, is designed to give effect to a recommendation of Lord Macmillan's Committee, and the new Clause 3 is consequential on Clause 2 (b). I beg to move.
  Amendment moved—
  After Clause 1, insert the said new clauses.—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: My Lords, I beg to move the next Amendment, which is in accordance with the recommendation of Lord Macmillan's Committee.
  Amendment moved—
  Leave out. Clause 2.—(Lord Morrison.)
  On Question, Amendment agreed to.
  Clause 3 [Power to make Acts of Sederunt regarding the Register of Sasines]:
  LORD MORRISON LORD MORRISON moved to delete paragraph (a). The noble Lord said: My Lords, paragraph (a) is unnecessary, since the requirements, so far as practicable, can be met by agreement. I beg to move.
  Amendment moved—
  Page 3, line 36, leave out paragraph (a).—(Lord Morrison.)
  On Question, Amendment agreed to.
  10.10 p.m.
  LORD MORRISON LORD MORRISON moved, in paragraph (b), to omit "register volumes." The noble Lord said: This Amendment and the next two Amendments are drafting. I beg to move.
  Amendment moved—
  Page 3, line 42, leave out ("register volumes").—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 3, line 43, leave out ("search sheets") and insert ("minute books").—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This again is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 3, line 43, at end insert ("of rubrics and preambles in the register volumes").—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON LORD MORRISON had given Notice to move to leave out paragraph (c) and insert—
  "(c) requiring that subject to such conditions as may be prescribed, where reference is made in a writ presented for recording in the Register to a writ previously recorded therein, the reference shall specify, as well as the date of such previous recording, the register volume and folio in which the writ is so recorded."
  The noble Lord said: With the permission of the House I should like to make a small alteration in the wording of this Amendment. I wish to insert the words "in such cases and" after the opening words "requiring that." The Amendment that I am now moving therefore will read:
  "(c) requiring that in such cases and subject to such conditions as may be prescribed…",

  265
  and so on, as printed on the Marshalled List. This Amendment is of a drafting nature, but it also meets a point of doubt that arose in the mind of the noble Lord, Lord Saltoun. I hope that the Amendment in the form in which I have moved it will meet with his acceptance. I beg to move.
  Amendment moved—
  Page 4, line 3, leave out paragraph (c) and insert—
  ("(c) requiring that in such cases and subject to such conditions as may be prescribed, where reference is made in a writ presented for recording in the Register to a writ previously recorded therein, the reference shall specify, as well as the date of such previous recording, the register volume and folio in which the writ is so recorded".)—(Lord Morrison.)
  LORD SALTOUN: I am very grateful to the noble Lord for meeting me on this matter. It is absolutely right now.
  On Question, Amendment agreed to.
  LORD MORRISON: This Amendment is consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Page 4, line 8, leave out paragraphs (d) and (e).—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This Amendment is also consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Page 4, line 17, leave out paragraph (g).—(Lord Morrison.)
  On Question, Amendment agreed to.
  Clause 3, as amended, agreed to.
  Clause 4 agreed to.
  Clause 5 [Consequential amendments]:
  LORD MORRISON LORD MORRISON moved to omit Clause 5. The noble Lord said: This Amendment is consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Leave out Clause 5.—(Lord Morrison.)
  On Question, Amendment agreed to.
  Clauses 6 and 7 agreed to.
  First Schedule [Consequential and Minor Amendments]:
  LORD MORRISON: This Amendment is consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Leave out First Schedule.—(Lord Morrison.)
  On Question, Amendment agreed to.
  Remaining Schedule [Enactments Repealed]:
  LORD MORRISON: This also is consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Page 6, leave out Lines 13 to 17.—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This Amendment is consequential upon paragraphs (a) and (b) of the new Clause 2. I beg to move.
  Amendment moved—
  Page 6, line 18, column 3, at beginning insert ("The words 'and the names and designations of the persons by whom' and the words 'immediately signed by the presenter of the writ and also by the Keeper, and'").—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This Amendment is consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Page 6, Line 20, leave out from beginning to end of line 21.—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 6, line 26, column 3, leave out from beginning to end of line 31, and insert ("sections ten, twenty and").—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This Amendment is consequential upon leaving out Clause 2. I beg to move.
  Amendment moved—
  Page 6, line 33, leave out from beginning to end of line 35.—(Lord Morrison.)
  On Question, Amendment agreed to.
  LORD MORRISON: This Amendment is also consequential upon the leaving out of Clause 2. I beg to move.
  Amendment moved—
  Page 6, line 38, leave out from beginning to end of line 39.—(Lord Morrison.)
  On Question, Amendment agreed to.
  House resumed.

  SECURITY POSITION IN MALAYA.
  10.18 p.m.
  LORD AILWYN LORD AILWYN rose to ask His Majesty's Government whether they are in a position to make a statement on the present security position in Malaya. The noble Lord said: My Lords, in rising to ask the question standing in my name on the Order Paper—notice of which I have given to the noble Earl who is to reply—I am asking information on a number of points relating to the security of life and property in Malaya. A fortnight ago—on June 16 to be exact—your Lordships were informed, in answer to a question which I put to His Majesty's Government, that a state of emergency had already been proclaimed in three areas of Malaya, and that the High Commissioner was exercising the special powers which he is entitled to use in that state of emergency. Since that time your Lordships will be aware that those powers have been considerably enlarged and, if Press reports are to be believed, the area in which they are being used has now been extended to cover practically the whole of Malaya.
  I am sure I speak for the majority of your Lordships when I say that we greatly welcome the energy with which the matter is now being pursued, but what I am unable to do is to share the complacency displayed by the noble Earl a fortnight ago when he expressed, to use his own words, his complete satisfaction that the necessary steps were taken in time. I think that your Lordships are entitled to know whether in fact the proclamation of the state of emergency was not somewhat belated. I ask the noble Earl to observe that I am trying to be studiously moderate in the language which I am using. The wave of crime began, I understand, in the middle of May this year. As long ago as February, when I happened to be in the country, the police were faced with a difficult and dangerous situation in attempting to round up marauding bands of what were described to me, on the highest authority, as Chinese killers who shot at sight.
  At that time, the Governor-General as he was then called, Mr. Malcolm MacDonald, was out of the country, and it may well be that the High Commissioner did not possess authority to proclaim a state of emergency without
  268
  reference to Whitehall. Perhaps the noble Earl will tell the House what powers were, in fact, vested in the High Commissioner during that period and what powers the Governor-General himself, or the Commissioner-General, as he is now called, possesses in the matter of proclaiming a state of emergency without the necessity, and therefore the delay, of referring to London. The crux of the matter is this: Were emergency powers sought in time and if not, why not? If, as I gathered from the noble Earl's reply the other day, they were sought in time, what was the reason for delay in putting them into execution? I must press the noble Earl on this point, as all my information is to the effect that very considerable dissatisfaction exists, and has existed for months past, up and down the Federation of Malaya at the dilatoriness of the Malayan Government, at the tardiness with which they recognised the gravity of the situation and at their failure to take in time the firm and resolute measures required to combat it.
  I pass to the police. I had the privilege of meeting the Police Commissioner and of attending a police tattoo at their depôt in Kuala Lumpur and I was greatly impressed with their appearance, their drill and their alertness. Their rifle drill was quite outstanding. I should like to ask the noble Earl what is the strength to-day of the Malayan police; how much they are below their recognised numbers; and what steps were taken before this wave of crime started to make good that shortage. What is the position to-day regarding recruiting and training of the police? Above all, what is the situation regarding their equipment, which, I understand, has always been the chief difficulty with which they have had to contend? Is every possible step being taken to put this matter of equipment right and is it being treated as a matter of extreme urgency? Lastly, what casualties have that gallant force suffered in their extremely difficult and hazardous task of hunting down these murderers?
  With regard to troops, has it been possible to meet all demands made for their assistance, and are His Majesty's Government satisfied that a sufficient force remains in reserve to meet or to cope with all emergency calls? The murders that have been committed in the course of this campaign of crime and

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  violence appear to have been largely those of European managers of rubber plantations and of officials of the Kuomintang, the National Government—that is, Chinese in positions of authority. Can the noble Earl give the numbers of casualties under both these headings during these last few months? Can the noble Earl also say whether the Malays themselves have been molested at all? Can he say, further, whether there have been any of these crimes in the tin mine areas and, if so, what were the victims there? Will he say whether these murdering bandits are all believed to be foreign-born Chinese? Are they all supposed to be Straits-born Chinese, or are there believed to be among them certain numbers of foreign-born Chinese? Further, may there possibly be aborigines and others from the Siamese borders, and the vicinity and beyond?
  I should like to hear whether the noble Earl and His Majesty's Government accept the theory that these crimes are all Communist-inspired, or whether some of this violence may not be due to the dissatisfaction, and resentment felt by the indigent Chinese at what they regard as their unfair treatment—or, rather, their unequal treatment and unfair representation on the Councils of the new Federation of Malaya. I should like to ask, too, whether the report called for by the Secretary of State on the murder of Mr. John Ramsden in his house on June 8 has yet been received. Are His Majesty's Government satisfied that every possible step has been taken and is being taken for the protection of the planters and others in isolated areas, and that no stone is being left unturned to round up, track down and bring to justice the men who are responsible for all these dastardly crimes? My last word is this. We learn from the Press that the High Commissioner is being recalled for consultations. His Majesty's Government will, of course, give careful consideration, in the light of recent evidence and of existing conditions, to the desirability of any change in administration which may serve to restore some of that confidence which has been lost among those who have to live and work in the disturbed conditions in Malaya to-day.
  10.28 p.m.
  LORD MANCROFT: My Lords, I should like to ask one or two questions
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  which arise directly out of the question asked by my noble friend, Lord Ailwyn. The first question is in conection with the defence forces. Is the noble Earl satisfied that there are sufficient Indian and British troops—that is, Gurkha troops—available to the authorities in Malaya? Have there been any requests for further troops and has it been possible to meet those requests? Further, is he satisfied that the British troops available are sufficiently experienced for this particularly arduous task? I ask that question in particular because earlier this week in a report in the Daily Express from their correspondent in Malaya, it was suggested that the British troops were not fully trained and not really capable of carrying out their task. Can the noble Earl give us any information about that matter? If reinforcements are needed, are they available? Would it not be possible to make available some troops and police who have gained experience in this type of work in Palestine and are now available?
  My next question is in connection with Ceylon troops of the Sinhalese Picneer Corps who are stationed in Malaya. Can the noble Lord say what they are doing? During the last two months there have been reports on two occasions of a state of affairs amongst the troops of the Sinhalese Pioneer Corps which very nearly amounted to mutiny and necessitated Gurkha troops being assigned to guard their lines. It seems a pity to waste Gurkha troops to carry out these duties of guarding recalcitrant troops from the Ceylon Pioneer Corps when they could be used in more important tasks in Malaya. The last question I want to ask concerns the actual command of the troops of Malaya. It has also been reported in the Press that the General Officer Commanding is coming home at the expiration of his term of service. Is the noble Earl satisfied that this is the right moment for a change in the appointment of the senior officer commanding in Malaya? And, if it is necessary, has his successor been given adequate time fully to appreciate the situation and to make all necessary contacts on taking over from his predecessor?
  10.31 p.m.
  THE EARL OF GLASGOW: My Lords, I wish to support my noble friend in a very few words. As he has said, there

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  have been dastardly crimes committed in Malaya; more than forty murders have taken place during May and June. It is almost impossible to believe that the administration had no inkling of what was going on. There is, I presume, a C.I.D. in Malaya, just as there is in this country. I should like to supplement the question the noble Lord has asked by asking the noble Earl who is to reply whether the police warned the Administration months ago that trouble was likely to occur, and whether the fact that active repressive measures were not taken was due to a difference of opinion between the police, the military and the civil Administration. One realises that the civil Administration is responsible, but if they refused to take the counsel of those who should advise them on such matters, they have, to put it mildly, made a regrettable mistake, and one which has cost invaluable lives.
  10.33 p.m.
  LORD WALERAN: My Lords, I would like to support my noble friend Lord Ailwyn in the question he has asked. I would like to ask the noble Earl who is going to reply just one question. Are His Majesty's Government satisfied that the air bases, both R.A.F. and civil, are fully protected? Your Lordships know how the lack of air cover, and the fall of the air bases, greatly contributed to the fall of Malaya and the loss which we sustained there. It must be realised that Malaya is our air gateway to the Dominions of Australia and New Zealand. I hope the Government are fully satisfied as to the protection of our air route to those Dominions.
  10.34 p.m.
  VISCOUNT ELIBANK: My Lords, we are very much indebted to the noble Lord, Lord Ailwyn, for raising this question, but I deplore the fact that this issue should be debated at this time of night. It is an issue not only of tremendous importance to Malaya itself, but to this country and to the world. However, I am sure my noble friend in asking his question at this time did so in the belief that it was in the best interest of the matter with which he is concerned. I am sure the House will accept it from that point of view. My noble friend Lord Ailwyn has raised many questions.
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  My noble friends Lord Glasgow and Lord Mancroft, and the noble Lord who has just sat down, raised other questions. I hope the noble Earl who is to reply will be able to give satisfactory answers to them, although I hardly believe that that is possible. I think we have to go back to the early stages of this problem. The French have a very good saying, C'est le premier pas qui coûte—it is the first step that counts. When one thinks back, one realises that the whole story of Malaya since 1945 has been a very unhappy one, and full of vicissitudes.
  The first step when this Government came into power was to attempt to set up what they then called a Malayan Union with a Malayan citizenship. The unfortunate Malays, and the other races in that Peninsula, were more than dazed—they had hardly woken up from the Japanese occupation. That created tremendous difficulties, heartburnings and troubles in the Peninsula, both amongst Malays and amongst the other races. At this time of night I do not want to go into a detailed story of what happened, but finally, after representations which were urgently made in your Lordships' House and in another place, the Government agreed to alter their policy, and sent out Mr. Malcolm MacDonald with almost a free hand to see what could be done to alleviate the tragic situation which had by that time arisen in the country. The Malays themselves, who had been our most wholehearted supporters and loyal subjects, had adopted the attitude of marching in big columns through the towns and the cities, holding up flags objecting to the British occupation. Mr. MacDonald went out there and succeeded, through the free hand that he was given, in suggesting a Constitution which to a certain extent alleviated that position.
  That was the beginning of our troubles. Towards the end of 1946, the planters and European miners had realised that they were in great danger on their plantations and in their mines. They urged the High Commissioner to appoint a special constabulary. The High Commissioner paid no heed to their warnings and, so far as I can learn, has paid little heed since then, otherwise we should not find the position in Malaya today as has been described by my noble friend Lord Ailwyn. I consider that that was very blameworthy, and I do not believe that there is a single planter or miner

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  in Malaya to-day but who blames the High Commissioner for not listening to their warnings.
  Time went on, and the Chinese were not satisfied with the Constitution which was granted. The Chinese comprise nearly 50 per cent. of the population of Malaya and Singapore. They considered that they had not had a fair deal. That may or may not be true—personally, I do not believe it is. Nevertheless, that was their view, and, consequently, they were easily led into the Communistic atmosphere which the Communists from China attempted to impose, and did impose, upon them. To-day, as a result of that, and as a result of the strong feelings that were aroused between the Malayans and the Chinese, we have the conditions which now exist in Malaya. As my noble friend remarked in the course of his speech, there are many Chinese who are Communists but who have been born in Malaya. I want to ask the noble Earl what he is going to do with those people. Under the Constitution which has been granted, they become Malayan citizens. Many of them are the people who are causing all these troubles to-day, who are murdering and looting and so on. What are the Government going to do with them? I think we require an answer on that point. Are the Government going to deport them, to send them back to China to assemble with their Communistic fellows? Or are they going to keep them there and put them in concentration camps? It is quite certain that so long as the Chinese Communists, whether they are born in Malaya or not, are left in Malaya, there will be this trouble. I think we have arrived at a position when the Government must tell us what they intend to do.
  I should like to ask another question. What are the Government going to do with regard to Singapore? Singapore is a vital strategic point in connection with our Far Eastern policy. Is Singapore to remain as a defended port, or is it, as has been said, to be grouped with the mainland, with the object of making it part of the Malayan Federal Union? About three-quarters of the population of Singapore are Chinese, and if that is done it will mean handing over this strategic point to the Chinese, and probably to the Chinese Communists in co-operation with the Communists in China. That is a vital question, so far as the Empire
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  and our interests in the Far East are concerned. I want to ask the noble Earl what the Government are going to do in regard to that. If he is not able to answer that question to-night, I hope that the Government will give the problem their earnest consideration, and will not relinquish a hold on Singapore or hand it over to the Malayan Federal Union.
  As I have said, I am sorry that my noble friend did not delay this question until two or three days hence, when we might have had a really good debate on it. But I think it is very important, not only from the point of view of our situation in the Far East, but also from the point of view of the lives of our planters and our miners in Malaya. I hate even to mention the economic aspect in the same breath as the lives of our planters and miners, but it is important, also, from the point of view of dollars that, if possible, we maintain this Peninsula in the same state of prosperity and peace as that in which it was before the Second World War.
  10.45 p.m.
  THE EARL OF LISTOWEL: My Lords, I am sure that the Government in both Houses of Parliament and people outside, will appreciate the deep concern that has been shown by those noble Lords who have spoken this evening about recent events in Malaya. It was on June 16, in reply to a question asked by the noble Lord, Lord Ailwyn, that I gave your Lordships a brief account of the wave of violence and lawlessness which was then sweeping across the Federation of Malaya. On that day, three European planters had been murdered by a band of armed Chinese at Sungei Siput in Perak, and two Chinese, one on an estate in Perak and one on an estate in Johore, where strikes had lately ended, were also murdered. That was on June 16. The state of emergency which was declared by the High Commissioner in that area of Perak and in two areas of Johore on June 16 was extended two days later, on June 18, to the whole of the Federation, and—this was referred to in the speech of the noble Lord, Lord Ailwyn—as a precautionary measure, the Governor of Singapore proclaimed a state of emergency there on June 24.
  The bands of gangsters which perpetrated the crimes which I have

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  mentioned have continued their outrages. Between June 16 and June 29, nineteen persons, all Asiatics, have been killed and there have been sixteen attempted murders. However, the measures which have been taken under the state of emergency have had some degree of success. More than 1,000 people have been arrested either for possessing arms or because they were suspected of menacing public order. Forty-one people have been arrested in connection with the various murders and attempts at murder. The strike situation is also improving. On June 4 there were twenty-seven strikes involving 6,900 people. On June 29 there were but eight strikes in progress—on rubber estates—involving no more than 817 workers. The emergency measures which have been taken are very far-reaching. For example, the death penalty has been reimposed for the simple offence of unlawfully carrying arms—carrying arms without a licence, not using them. The police and Army may arrest without warrant, detention may be ordered, and searches of persons and premises may be carried out without warrant. Wherever necessary, a curfew may be imposed and restrictions placed on the movement of vehicles and persons. These restrictions and the deployment of Army units in support of the police should curtail the operations of these gangsters and bring many of them into the net spread by the police and the Army.
  Consideration has also been given to the best method of ridding the country of, those who abuse its hospitality. This was referred to at some length by the noble Viscount, Lord Elibank. The law in force at the moment in the Malay States permits the deportation of any person in a State from Federation territory. The law in force in the British Settlements of Penang and Malacca, which are now part of the Federation, permits deportation of aliens only—that is to say, there is no deportation of British subjects. The practice throughout the Federation since the Settlements were joined constitutionally with the States has been to take action against aliens only. That has been the practice.
  VISCOUNT ELIBANK: May I interrupt the noble Earl to ask where they are deported? Or is that an indiscreet question?
  THE EARL OF LISTOWEL: Not in the least. Deportation is to any country which consents to take the persons who are deported, and in fact the country which has taken most of the individuals who have been deported has been China. Experience has shown that this policy of deportation has enabled some persons of British nationality who have been concerned in fomenting and perpetrating acts of violence to evade their just deserts. It has, therefore, been decided that, as a matter of policy, proceedings under the banishment law in force in the States may be taken against British subjects who do not belong to Malaya—that is to say, the penalty of banishment has been ex-tended from aliens to British subjects. In this way, persons who are not citizens of the Federation of Malaya will be liable to deportation, and legislation will be introduced, in the case of the Settlements, to permit the same policy to be followed there—that is, in the case of Penang and Malacca.
  On June 16 I informed your Lordships that other legislation which was being drafted to deal with the situation which has developed in Malaya was well on the way to completion, and I can inform your Lordships that this legislation will be introduced into the Legislative Council of the Federation of Malaya when it assembles on July 5. Your Lordships will therefore realise that at this moment the Executive, under the Essential Regulations which have been proclaimed and which can be made in a state of emergency, is armed with very wide powers for the maintenance of law and order and for the safeguarding of the life and property of the community. There is no question, therefore, that the Executive is being hampered in its task. Careful thought has also been given to supplementing the forces at its disposal. I am sure your Lordships will appreciate that, for security reasons, I am not in a position to give the precise strength and locations of the Army in Malaya and Singapore. These armed forces include British, Gurkha and Malay units of some considerable strength, and we have no reason to suppose that these forces will be unable to give the support which the civil power requires to back it up in the present situation, and at this moment the Army is giving the utmost co-operation to the civil authorities. Troops are operating both in an active rôle, by patrolling and acting

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  offensively against bands of gangsters, and also by relieving the police of certain static duties, such as guarding prisons and key points. So, too, the Navy and the R.A.F. are co-operating in this campaign against lawlessness.
  Reference has been made to the police. A force of special constabulary is being organised to strengthen the police and enrolment is going forward. The Federal Government has decided to increase the police force in the following ways: by further recruitment and training of local personnel, which has already been in train for the past two weeks; and by the formation of a Frontier Force or Gendarmerie for the Northern Frontier, which is subject to the Executive Council's approval when details have been worked out. Furthermore, some civil officers have been diverted from ordinary duties to assist in the administration work of the police force and for organising and directing the special constabulary. A great deal of progress has been made in getting additional equipment for the police forces and for local assistance which may be given to the police. This strengthening of the police has also taken place in Singapore. In Singapore recruitment for the regular police force has been continued up to the complete establishment of 3,000 persons. Three hundred extra recruits have been enrolled, and special and volunteer constabulary in addition to the police are being successfully recruited.
  LORD AILWYN: Would these be Malays?
  THE EARL OF LISTOWEL: Yes. The special constabulary are laymen; they are not trained policemen. Now both these Governments, the Government of Singapore and the Government of the Federation——
  LORD AILWYN: I think the noble Earl misunderstood me. I asked him whether the men being enrolled were Malays.
  THE EARL OF LISTOWEL: Yes, but I must: qualify that by saying that it is open to Malays, Chinese or Europeans to enroll.
  LORD AILWYN: I was referring to the special constabulary.
  THE EARL OF LISTOWEL: It is open to Europeans, Chinese or Malays to enroll in the constabulary. Malays are just
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  as welcome as anyone else. Both Governments are giving urgent consideration to the desirability of recruiting men for the police force from any source from which recruits can be obtained.
  Now may I give your Lordships some evidence of the sort of work that is being carried out by the police and the Army? Very active searches have been made for arms and ammunition. In the first five months of the year, 528 weapons of various kinds, including a number of rifles, automatics, revolvers and pistols, were seized from perons who were carrying them. A total of 951 grenades and over 100,000 rounds of ammunition have also been recovered since the beginning of the year. So this sweep for the recovery of arms which were possessed by people without any legal title to them has had considerable success. The local Governments have been empowered at all times to take proper measures for good order and government without reference to the Secretary of State for the Colonies. In the case of the Federation of Malaya, the matter is one for the High Commissioner, and in the case of Singapore for the Governor. The Commissioner-General in South East Asia, Mr. Malcolm MacDonald, has a general co-ordinating function, and is not directly responsible for the administration of the territories in his area of authority. I think that possibly there was some confusion of thought on the part of Lord Ailwyn concerning the functions of the Commissioner-General. Once the situation became so grave that these sectional powers had to be entrusted to the Executive, a decision was taken without delay and the state of emergency declared.
  Your Lordships may ask—indeed, the noble Lord, Lord Ailwyn, has asked—what lies behind this outbreak of violence.
  VISCOUNT ELIBANK: May I ask at what date the state of emergency was declared?
  THE EARL OF LISTOWEL: I will reply to that a little later. Some incidents that have taken place are cases of plain banditry, where the motive is robbery. There have also been cases of extortion by duress or ill-treatment, and of killings for revenge, which are unconnected with any political campaign—they are just ordinary criminal cases. On the other

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  hand, there are many armed men, accustomed to guerrilla warfare, who mouth Communist slogans and spread Communist propaganda. There is a Communist Party in Malaya. Its rank-and-file are Chinese, though its overt leaders are often Indian. There are many organisations, including trade unions, permeated with Communist influences and subverted by their revolutionary doctrines. The authorities have done their utmost to encourage the growth of political awareness among the people, and extreme opinions couched in immoderate language are the first stirrings of political consciousness. But there is evidence that an armed attack is being made on the authority of the Government. These outrages are directed against the main fabric of the country's economy—against the tin mines and rubber plantations. Managers and their staffs are killed, and their workpeople intimidated into withholding their labour. In spite of this outbreak of violence, managers and labour alike—and I should like to pay tribute to their fortitude—stay at their work on the plantations and in the mines. In spite of this constant danger from the lurking forces of violence in the jungle, and the actual crimes that have taken place, these managers and their men, on remote estates and mines, and also their womenfolk, have carried on undismayed.
  I would not like the House to think that these outbreaks of violence are due to the conditions of life of the working men in Malaya. Their conditions are steadily improving. Wages have risen considerably since the war, with the rapidly rising cost of living. The ration of rice is small and the purchase of rice in the black market, which we cannot prevent, adds greatly to the expense of everyday life. There is in Malaya full employment, a state of affairs which did not prevail for many years before the war. Machinery for negotiation and conciliation has been devised and has already shown that, given a reasonable chance, it can work extremely well. Schemes for social welfare are in operation and more schemes are planned. Finally, Malaya is now working with a domiciled labour force and is no longer dependent on the flow of immigrant labour from India and China which before the war maintained the country's industries at their full level of employment. I think it can be said
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  without exaggeration that prospects for the working people in Malaya have never been brighter than they are to-day.
  Besides the attacks on those who direct or work in the principal industries of Malaya, there have been attacks on the political opponents of these gangsters, on those who have given evidence in cases of intimidation, on the police, who have been acting according to their various duties in different parts of the country, and particularly on police stations. There is evidence that the gangs are organised with camps and training centres in the jungle. Since the end of the war, Malaya has been an island of comparative peace in the disturbed world of South-East Asia. I believe the great mass of people in Malaya repudiate most energetically the outrages which have been committed and call on those in authority for the elimination of those responsible for these dastardly crimes. We, and those who are acting in positions of responsibility in Malaya, are making every effort to destroy these violent men and to restore at the earliest possible moment to every part of the country the peace and security which has been enjoyed under British rule in the past.
  The noble Lord, Lord Ailwyn, asked me a number of questions, some of which I lave answered and some of which I have not referred to. I hope that the noble Lord and the House will not consider it trespassing upon their time at this late hour if I reply to some of the questions which I have not yet answered. The noble Lord asked whether I had anything further to say about the murder of Mr. John Ramsden on June 8. Yes, a Malay by the name of Mahomed Zain has been arrested and charged with this murder. The noble Lord also asked what powers were vested in the Commissioner-General in South-East Asia to proclaim a state of emergency without reference to London. The Commissioner has no executive function. That ought to be made absolutely clear. The responsibility for declaring a state of emergency rests with the High Commissioner in the Federation of Malaya and with the Governor, in the case of Singapore. Neither of these authorities is required to refer to London and, in point of fact, a state of emergency was proclaimed in Malaya without reference to my right honourable friend the Secretary of State for the Colonies.
  LORD AILWYN: By the High Commissioner?
  THE EARL OF LISTOWEL: Yes, by the High Commissioner.
  LORD AILWYN: On what date?
  THE EARL OF LISTOWEL: I cannot give the noble Lord the date offhand, but I will see that he gets it. It was a date at the beginning of last month.
  VISCOUNT ELIBANK: Are the High Commissioner and the Governor synonymous?
  THE EARL OF LISTOWEL: No. Sir Edward Gent is the High Commissioner for Malaya and Sir Franklin Gimson is the Governor of Singapore. The noble Lord also asked whether emergency powers were sought in time. So far as the evidence which we have at our disposal in my Department is an indication of whether or not timely action was taken, I can assure the noble Lord that we have no reason whatever to think that the authorities on the spot were tardy in declaring a state of emergency. The noble Lord went on to ask, if these powers were taken in time, why there was any delay in putting them into operation. There was, in fact, no delay at all. The first decision to proclaim a state of emergency (I think I can give the noble Lord the date for which he asked) was taken on June 16, and the Emergency Regulations which the Governor was empowered to make once a state of emergency was proclaimed were promulgated on the very same day. There was no hiatus between the two.
  LORD AILWYN: These Chinese killers were going about in February, and, I understand, long before that. I know they were in February, because I was in the country. These things did not happen until June.
  THE EARL OF LISTOWEL: Strong measures were being taken against individuals who had been guilty of violence at a very much earlier date. The noble Lord asked what is the strength of the Malayan police, and whether the figure at the moment is below the normal figure. An approximate figure for the strength of the Malayan police is 10,000 persons, of whom 9,500 are constables. This is the normal establishment of the Malayan police so there is no deficiency there. The noble Lord also
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  asked whether the police are adequately equipped, and whether they are getting the equipment they want. I can assure him that we are providing all the additional equipment for which the police have asked. Transport, for example, is being lent by the Army and the R.A.F. Some further equipment has been obtained from this country, and radio equipment is being flown out. The noble Lord asked about the number of casualties sustained by the Malayan police since these disorders began. We have no report of fatal casualties specifically referring to the police in Malaya.
  The noble Lord asked—I think this was also a question asked by Lord Mancroft—whether we have sufficient troops in the country to reinforce the police. I think I replied in the course of my opening remarks that in our view there is adequate and ample military support for the police in Malaya. That also applies to the reserves on which the a Armed Forces have to rely in case of formidable opposition. We have reserves which are sufficient to meet any contingency we can foresee. The noble Lord asked about the number of Kuomintang Chinese who have been killed since the beginning of this outbreak of violence. I cannot give the noble Lord figures for the Kuomintang Chinese, but I can tell him that in all thirty-seven Asiatics have been killed, a figure which includes Chinese and Malays, and Chinese of different political persuasions. He may legitimately infer from this statement that Malays also have been the victims of these attacks.
  LORD AILWYN: Can the noble Earl say anything about the European lives?
  THE EARL OF LISTOWEL: I do not think the noble Lord asked me specifically for the figure of Europeans.
  LORD AILWYN: Yes—the number of European lives, and then of Kuomintang Chinese.
  THE EARL OF LISTOWEL: I am sorry I have not that figure, but I will obtain it at the earliest possible moment and give it to the noble Lord. The noble Lord asked about outrages in the tin mines. One European manager has been killed. He also asked whether the murderers are believed to be Straits-born Chinese or foreign-born Chinese. Of course, until the murderers are rounded up, tried and

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  convicted, it is impossible for us to tell what their origin is, but we have good reason to suppose that most of the murderers are foreign-born Chinese, which I imagine was the view the noble Lord himself held. I will only say that we have naturally been following with great anxiety and the closest interest the whole trend of events in Malaya. We are satisfied that the authorities on the spot are taking the most energetic measures to deal with these outbreaks of violence, and I can assure noble Lords that the authorities there are receiving the utmost possible support that we can give, not only in the Colonial Office but in the other Departments of the Government in Whitehall.
  11.12 p.m.
  LORD LLEWELLIN: My Lords, before we depart from this subject, I would remark that it is obviously one which this House ought to keep under very careful review. I think many of us rather suspect that, although adequate action may now be being taken, it was not taken early enough. I hope the Government will inquire whether those responsible really took action in time, having been warned, as I understand, in very good time. If they had taken action earlier, one suspects that a lot of these incidents might well have been prevented. I am very glad to hear that everybody on the spot will have the full support of His Majesty's Government in taking effective action to wipe out this wave of violence which seems to have temporarily overcome that once very happy country, as it was when I was there. For myself, I would only say that I have complete confidence in Mr. Malcolm MacDonald in all that he does, having worked with him when he was in Canada. I should think that since he has taken a guiding hand in this matter, things may well be better than they were before. I hope the Government will inquire whether steps were actively taken before, or whether anybody was not active enough when we had sufficient warning. I hope some steps will be taken about that.
  THE EARL OF GLASGOW: My Lords, before the debate closes, may I ask the noble Earl whether there have been any differences between the police and the military and civil Administration, and
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  whether those differences may possibly have caused a rather late decision on the whole question of security?
  THE EARL OF LISTOWEL: So far as I am aware, there has been the most harmonious and intimate co-operation between the civil authorities and the military in Malaya.
  THE EARL OF GLASGOW: I am very glad to hear that.
  VISCOUNT ELIBANK: My Lords, before the noble Earl sits down, I would like to ask one question. Will the noble Earl bear in mind what I said about Singapore and keeping it independent, having regard to its vital position in the Far Eastern route? And will he bring to the notice of the Colonial Secretary the few words that I ventured to utter about this matter? I said that I would not expect an answer to-night, but he did not refer to it in his reply so I wish to return to it again.
  THE EARL OF LISTOWEL: I will gladly do that. As the noble Viscount said, he did not expect a reply to-night.

  AGRICULTURE (SCOTLAND) BILL.
  11.14 p.m.
  Returned from the Commons with certain of the Amendments agreed to and one other Amendment disagreed to, with a Reason for such disagreement: the said Reason to be printed.

  CROMER URBAN DISTRICT COUNCIL BILL. [H.L.]
    WARWICK CORPORATION BILL. [H.L.]
    Commons Amendments considered and agreed to.
  LONDON COUNTY COUNCIL (GENERAL POWERS) BILL.
  The CHAIRMAN OF COMMITTEES informed the House that the opposition to the Bill was withdrawn: The Order made on May. 27 last discharged, and Bill committed.
  IPSWICH CORPORATION BILL.
  Reported, with amendments.

  PRIVATE LEGISLATION PROCE- DURE (SCOTLAND) ACT, 1936.
  Report from the Committee of Selection, That the following Lords be proposed to the House as Members of the panel of Lords to act as Commissioners under the Act during the present Session,—namely:

  L. SALTOUN,

  L. STRATIECONA AND MOUNT ROYAL:

  agreed to; and the said Lords appointed accordingly.

  AGRICULTURAL HOLDINGS BILL. [H.L.]
  Reported from the Joint Committee on Consolidation Bills with Amendments, and recommitted to a Committee of the Whole House.

  CONSOLIDATION BILLS.
  Fourth Report form the Joint Committee, being the Report on the Agricultural Holdings Bill [H.L.] made, and to be printed. The Minutes of Evidence (together with the Proceedings of the Joint Committee) laid upon the Table, and to be delivered out.
  House adjourned at a quarter past eleven o'clock.