VISITING FORCES BILL [H.L.] (Hansard, 26 June 1952)

THE LORD CHANCELLOR (LORD SIMONDS)

My Lords, in rising to ask your Lordships to give a Second Reading to this Bill, I am conscious that it is one of very considerable complexity and difficulty, and if I err by taking up too much of your Lordships' time, or if I err by failing to state matters with sufficient clarity, I hope I may have your Lordships' indulgence. The Bill, as its title indicates, is a Bill to make provision with respect to naval, military and air forces of certain other countries visiting the United Kingdom, and to provide for the apprehension and disposal of deserters or absentees without leave in the United Kingdom from the Forces of such countries, and for other purposes.

Before I come to the terms of the Bill itself I think I should say a word about its origin and background. It is necessary to bring in this Bill to enable this country to ratify an Agreement regarding the status of forces of the parties to the North Atlantic Treaty (Command Paper 8279), which was signed by the previous Administration in June, 1951, and with which no doubt some of your Lordships are familiar. Now, though the Bill owes its origin to this Convention or Agreement, which deals only with the forces of those Powers which were party to the North Atlantic Treaty, it had been convenient at the same time to bring in the same measure in regard to Commonwealth forces, for, of course, it would be quite wrong to put into a different position the forces on the one hand of the Powers—I take the United States as an example—who were party to the North Atlantic Treaty and, we will say, forces from the Commonwealth of Australia, who were not such a party. Obviously there would be the greatest difficulty about that.

I think your Lordships ought to know in the first place what is the position in regard to the other parties to the North Atlantic Treaty with regard to this Convention, or, rather, to this particular part of the Convention. The position is that so far no country has ratified the Agreement. In Canada a Bill which is necessary to implement the Agreement has 452 received the Royal Assent. One may assume, although I do not know, that that is but a preliminary to ratification. In the United States of America the Agreement was taken for ratification to the Senate on June 16 of this year—a short time ago. It is not certain whether it will be ratified before the adjournment, which is expected this month. The French Government report that it is expected that the Agreement will be ratified on July 1 or thereabouts. All the other countries report that they expect to ratify the Agreement very soon. In some cases the Agreement has already been submitted to their Parliaments. It is, therefore, plainly obligatory upon this country, if we can possibly do so, to pass the necessary legislation to enable us to ratify the Convention which was signed on behalf of this country in June of last year.

Again, before I come to the terms of this Bill, I should say two things about it. In the first place it is an attempt to translate into the terms of our municipal law an Agreement entered into by a number of countries having different systems of law but aiming at a common policy in regard to the forces of other countries in their territory. That is not an easy task. But we hope and believe that in the Bill we now present we do carry out the obligations which we have undertaken in the Convention; and we hope that we have made no further concession than is imposed upon us by that Convention. In the second place, I would ask your Lordships, in considering the terms of this Bill, to remember this: that if it appears to any of you that we are making concessions which may create difficulties for our own citizens of this country in relation to members of visiting forces, we are getting reciprocal benefits in that our forces abroad will obtain similar benefits in the countries to which they are visitors; and that, I venture to think, may be regarded as a very important consideration.

The Agreement to which I have referred—Command Paper 8279—deals with a number of matters. In Article 7 it deals specifically with the subject matter of this Bill, namely, the question—necessarily a very difficult question—which arises when the forces of one country are stationed by the invitation of what I may call the receiving country in 453 the territory of the receiving country. I do not want to read at unnecessary length Article 7 of the Convention to which I have referred, but it does in fact provide that, as between what I call the receiving country's courts and the courts of the visiting country, the jurisdiction shall be divided. It is an attempt to give the Service courts of the forces of the visiting country exclusive jurisdiction in certain matters unless those courts choose to waive jurisdiction; and to give concurrent jurisdiction in other matters both to the courts of the receiving and the courts of the visiting country. And, of course, the courts of the receiving country—that is to say, in this case, the courts of the United Kingdom—retain jurisdiction except so far as by this Bill it is expressly excluded.

The Convention, by Article 8, deals also with another matter which is covered by a certain clause of the Bill to which I shall invite your Lordships' consideration. It is a clause which stands quite by itself but it does not deal with criminal jurisdiction. It deals with civil claims. If your Lordships think it proper, I will defer consideration of that until I have concluded what I have to say on the more difficult question of criminal jurisdiction. I think it has come to many people as a surprise that it should be necessary or, indeed, possible that there should be in our midst a large body of persons who are not subject to the jurisdiction of the courts of this country. I suppose that fifty years ago that would have come as something of a shock. But we have to look at these matters through the eyes of 1952 and not of 1900; and conditions, as I shall show your Lordships, have changed, so that what then must have been heard with something of a shock must now be received almost as a matter of course.

I want to put this further point about the background before we come to the Bill. Obviously the position in one country of the forces of another country must always create difficulties. But it has apparently long been held by international lawyers that the true position is this—and, if I may, I will read to your Lordships a short extract from an authoritative work, Oppenheim on International Law, 5th edition, page 662 of the 1st Volume: Whenever armed forces are on foreign territory in the service of their home State 454 they are considered ex-territorial and remain therefore under its jurisdiction.… A crime committed on foreign territory by a member of those forces cannot be punished by the local, civil or military authorities but only by the commanding officer of the forces or by other authorities of their home State. This rule, however, applies only in case crime is committed cither within the place where the force is stationed or in some place where the criminal was on duty. It does not apply if, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the fortress not on duty but for recreation and pleasure, and then and there commit a crime. The local authorities are in that case competent to punish them. It was that view, strongly entertained by the American authorities, which was, I think, a factor in the passing of the United States of America (Visiting Forces) Act of 1942, which the noble and learned Viscount, Lord Simon, was instrumental in persuading your Lordships to pass in this House.

The next thing which I must tell your Lordships as the background to the Bill which I now present is what has happened in the last twenty years in regard to this matter. In the year 1933 an Act was passed which was called the Visiting Forces (British Commonwealth) Act, 1933. That was an Act which aimed at setting up and legalising the Service courts of visiting forces. At once in this House and in another place there were protests. It was said: "Here you are proposing to set up Service courts of another country which will have the power to detain, to sentence, to punish persons who are on British soil and are therefore entitled to the protection of the King's Peace." The sacred name of habeas corpus was invoked in eloquent terms by the first Lord Buckmaster in this House and by Lord Atkin, and similar protests were made in another place. But that Act was passed notwithstanding; and, so far as I know, no harm came of it. But the distinguishing feature of that Act was that, although Service courts were set up, no exclusive jurisdiction was given to those courts over the members of visiting forces. On the contrary, there was concurrent jurisdiction, and the jurisdiction of the English courts was not ousted. It was a first step towards that which was later done—namely, the setting up of a court which was not subject to our jurisdiction, what one may call a foreign Service court. I believe that when that was done in 1933 455 it was the first time since Papal jurisdiction was excluded from this country.

In 1940 another step was taken, not in regard to the Commonwealth forces but in regard to the Allied forces generally. Your Lordships will remember that there were on this soil in the early days of the war a number of visiting forces—French, Polish and Norwegian. In regard to those forces, similar measures were provided, but once more there was no question of a jurisdiction which excluded the courts of this country. There was a concurrent jurisdiction in so called Service courts and in the courts of this country. The next and the graver step was taken in 1942. In that year an Act was passed called the United States of America (Visiting Forces) Act of 1942. That Act gave effect to an Agreement which was made between the Secretary of State for Foreign Affairs in this country and the appropriate United States authority, and it did take what one may venture to think was a grave step, in that it excluded altogether from the jurisdiction of an English court a member of a visiting force who had committed a crime in this country, whatever the nature of this crime. Whether it was a crime purported to be committed in the course of duty or whatever its nature, the jurisdiction of the courts of this country was excluded altogether. I will not say that that Act was passed altogether without protest, but in this House, due, I expect, to the silver tongue of the noble and learned Viscount, Lord Simon, it had a very easy passage. That is the necessary background to the Convention to which I have referred.

Now I come to the terms of the Bill now before your Lordships. Your Lordships will see that it does not go the whole length of the Act to which I have last referred—that is to say, it does not in all cases and for all purposes exclude the jurisdiction of the English courts. On the contrary, it marks a dividing line between cases which shall be subject to the exclusive jurisdiction of the courts of the visiting forces' country and those which are not. If your Lordships will be good enough to look at the Bill you will see that by the first subsection of Clause 1 it is made to apply at once to Canada, Australia, New Zealand, the Union of South Africa, India, Pakistan and Ceylon. 456 Your Lordships may consider that there is a rather curious inversion here, for, whereas the origin of the Bill lies in the Convention to which the countries I have mentioned, except Canada, were not parties, the Bill applies, in the first place, to what I may call the Commonwealth parties; and then, by subsection (2), it may be made applicable to other countries by Order in Council. If your Lordships' look at subsection (2) you will see that it is so framed as to be appropriate to deal with those countries which are signatory to the North Atlantic Treaty. It provides that: Where it appears to Her Majesty…that having regard to any arrangements for common defence to which Her Majesty's Government in the United Kingdom and the Government of that country are for the time being parties it is expedient that the following provisions of this Act, or any of those provisions, should have effect in relation to that country, Her Majesty may by Order in Council direct that the provisions in question shall have effect in relation to that country, subject however to any adaptations or modifications specified in the Order. That means that, in order to carry out the Convention, it is contemplated that forthwith the appropriate Orders in Council will be made applying the provisions of the Act to the North Atlantic Treaty Powers, as I have mentioned.

Now we come to Clause 2 of the Bill, which sets up the Service courts and legalises their acts. There is nothing in Clause 2 which has not been covered by the earlier Acts, the Act of 1933 and that of 1940. Your Lordships will see: The service courts and service authorities of a country to which this section applies may within the United Kingdom, or on board any of Her Majesty's ships or aircraft, exercise over persons subject to their jurisdiction in accordance with this section all such powers as are exercisable by them according to the law of that country. Then we come to the persons who are to be made subject to the jurisdiction. They are (a) members of any visiting force of that country; and"— your Lordships will observe these words— (b) all other persons who, being neither citizens of the United Kingdom and Colonies nor ordinarily resident in the United Kingdom, are for the time being subject to the service law of that country otherwise than as members of that country's forces. 457 A convenient term to describe that lengthy sentence might be "camp followers," if that has not a rather invidious meaning. So that the courts are set up and legalised, and there is in the Bill a description of the persons who are subject to the jurisdiction of those courts.

Then we have subsection (3), which is of importance and which reads: Where any sentence has, whether within or outside the United Kingdom, been passed by a service court of a country to which this section applies upon a person who immediately before the sentence was passed was subject to the jurisdiction of that court in accordance with this section, then for the purposes of any proceedings in a United Kingdom court the said service court shall be deemed to have been properly constituted, and the sentence shall be deemed to be within the jurisdiction of that court and in accordance with the law of that country, and if executed according to the tenor of the sentence shall be deemed to have been lawfully executed. That is to say, no writ of habeas corpus shall be issued. If it is issued there will be a good return to it. No action can follow in pursuance, and nothing of that kind will lie by the soldier against his commanding officer or other authorities. That is amplified by subsection (4) which says this: Any person who—

(a) is detained in custody in pursuance of a sentence as respects which the last fore going subsection has effect, or
(b) being subject in accordance with this section to the jurisdiction of the service courts of a country to which this section applies, is detained in custody pending or during the trial by such a court of a charge brought against him, shall for the purposes of any proceedings in any United Kingdom court be deemed to be in legal custody."

Subsection (5) deals, in effect, with mutual aid being given by the authorities of the visiting forces in the receiving country as to arrest and so on.

Now my Lords, I will come to Clause 3, which no doubt will give your Lordships most concern, for it provides an exclusive jurisdiction ousting the jurisdiction of the courts of this country in respect of certain cases. It provides as follows: … a person charged with an offence against United Kingdom law shall not be liable to be tried for that offence by a United Kingdom court if at the time when the offence is alleged to have been committed he was a member of a visiting force or a member of a civilian component of such a force and "— 458 these are the particular qualifications—

"(a) the alleged offence, if committed by him, was committed in the course of duty as a member of that force or component, as the case may be; or
(b) the alleged offence is an offence against the person, and the person or, if more than one, each of the persons in relation to whom it is alleged to have been committed had at the time thereof a relevant association either with that force or with another visiting force of the same country "—

the words "a relevant association" are defined in Clause 12 (2). Then there is a further alternative—namely, if (c) the alleged offence is an offence against property, and the whole of the property in relation to which it is alleged to have been committed is property, in effect, of the forces of the visiting State.

So there are three cases in which the jurisdiction of this country is excluded: first, if the offence is committed in the course of duty; secondly, if it is committed against a person or a member of the visiting force, and, thirdly, if it is committed against the property of the visiting force. In all those cases the exclusive jurisdiction lies with the service courts of the visiting forces. Then in subsection (2) there is a qualification with which I need not trouble your Lordships. But subsection (3) is important because it gives a right of waiver, and it provides as follows: Nothing in subsection (1) of this section— (a) shall prevent a person from being tried by a United Kingdom court in a case where the Director of Public Prosecutions (in the case of a court in England or Wales), the Lord Advocate (in the; case of a court in Scotland) or the Attorney-General for Northern Ireland (in the case of a court in Northern Ireland) certifies, either before or in the course of the trial, that the appropriate authority of the sending country has notified him that it is not proposed to deal with the case under the law of that country. That is to say, an opportunity of waiver is given to the authorities of the visiting force if they think fit to take that course. Perhaps it will be within the recollection of your Lordships that there was a similar provision in the Act of 1942, to which I have referred.

It may be within your Lordships' recollection that some little time ago there was a case which acquired a good deal of notoriety, where an American soldier 459 took an English girl with him in a taxi-cab and they "beat up" and murdered the taxi-driver. Under the law as it then stood, subject to waiver, it was the American court which had exclusive jurisdiction to deal with the American soldier, whereas, of course, the girl who had been taken with him was subject to the jurisdiction of the English courts. The American authorities exercised the right of waiver and the American soldier and the English girl were both tried by an English court. That is an example of the exercise of the power of waiver which is given by this subsection. I do not think I need refer, because they are mere machinery, to paragraphs (b) and (c). Subsection (4) deals with aiders and abettors and puts them in the same position as principals.

Subsection (5) provides as follows: Nothing in this section shall be construed as derogating from the provisions of any other enactment restricting the prosecution of any proceedings or requiring the consent of any authority … That is a cautionary measure. Your Lordships may remember that in certain Acts, such as the Public Order Act and the Official Secrets Act, special authority is required before proceedings can be instituted. So far, those are the vital sections of this Bill setting up the jurisdiction and giving it exclusively in certain cases, but in certain cases only, to the courts of the visiting country.

Then, my Lords, Clause 4 provides as follows: … where a person has been tried by a service court of a country to which this section applies in the exercise of the powers referred to in subsection (1) of section two of this Act, he shall not be tried for the same crime by a United Kingdom court. I think that is a provision that must make its appeal to everybody, although I believe that, theoretically, it will place the soldier of a visiting force in a different position from a soldier in the British Army, because I think I am right in saying that, theoretically, when a man has been tried by court-martial under the Army Act it is still open to the authorities to try him also in the civil courts. Subsection (2) of Clause 4, goes on to provide: Where a person who has been convicted by a service court of such a country in the exercise of the said powers is convicted by a United Kingdom court for a different crime, 460 but it appears to that court that the conviction by the service court was wholly or partly in respect of acts or omissions in respect of which he is convicted by the United Kingdom court, that court shall have regard to the sentence of the service court. That means that, where two crimes are so closely connected that the one ought to be taken into account in the consideration of the other, then the court has to do so.

Clause 5 is certainly of importance, although it is a machinery clause, because it provides that nothing in the clauses to which I have referred, setting up this jurisdiction, is to derogate in any way from any powers of arrest, entry, seizure or custody exercisable under the United Kingdom law. So that if a policeman finds a soldier of a visiting force committing a crime, he need not pause to ask whether it is being committed in the course of duty and whether there is executive jurisdiction in the service court of the visiting country: his duty is, just the same, to arrest the offender. When he has arrested him, then, in due course, the arrested man may be handed over to the authorities of the visiting force—if that is the correct procedure in the circumstances. Clause 5 (2) makes further provision for this. As your Lordships know, when a man has been detained in prison it is imperative that he should be brought before the proper authority within the shortest possible time, which you may say is, roughly, twenty-four hours. I am not using that figure with absolute precision, but generally speaking a man who has been detained in custody for twenty-four hours should be brought before the proper authority when, of course, he can be remanded. That may not be adequate time when the question is whether the man should be handed over to the authority of the visiting force or not, so Clause 5 (2) enlarges the time to four days. Subsections (3) and (4) make application of the clause to Scotland and Northern Ireland. Clause 6 provides that— No proceedings shall be entertained by any United Kingdom court with regard to the pay of any person in respect of service as a member of a visiting force "— and so on.

Clause 7 is a rather difficult and complicated clause, which deals with the jurisdiction of the coroner. As your 461 Lordships will easily see, there may be conflict of jurisdiction if the coroner proceeds with his inquest and finds it necessary to commit on the inquisition. That he will not do if he finds that the person against whom any suspicion is founded is a member of a visiting force. Perhaps when we come to the Committee stage there may be other points to which we shall give attention but there is nothing else in this clause to which I need specially call your Lordships' attention on the Second Reading, except to say that this harmonises proceedings in the coroner's court with the scheme of the Bill. Clause 8 is a clause which, again, provides necessary machinery. I think I must read the first subsection. It runs as follows: Her Majesty may by Order in Council make such provision as appears to Her to be expedient for the purpose of applying to any visiting force (whether wholly or in part and with or without modification or exceptions) the law relating to the home forces. I need hardly say that this is an Order in Council of the type which requires an Affirmative Resolution, and that is provided for by subsection (4) of the clause. What we have in mind there is that there will be a variety of enactments—it is impossible to predict precisely what they will be—which it will be necessary to apply to visiting forces in order to make this scheme operate. One or two of them occur to one immediately the question is raised.

Assume that an offender is handed over to the service court of a visiting force, and suppose that it is necessary that the evidence of a British citizen should be given at the trial of that offender. How can such a person be compelled to give evidence? Accordingly, it is necessary to apply the relevant provisions of the Army Act with the necessary adaptation, because, as your Lordships are aware, it is possible under the Army Act to compel the attendance of a witness before a court-martial. Although a court-martial has no power to deal with a recalcitrant witness, a court-martial can report the matter to the High Court, which can deal with it accordingly. That is the sort of enactment—and there will be many of them of many types—which it will be necessary to apply in order to make the machinery of the Bill work smoothly. Clause 8 is on similar lines to the provisions of the 1933 and 1940 Acts, but, I think, with 462 some improvement in drafting. When one is considering these rather important conditions it is, I think, relevant to remember that these earlier Acts have worked perfectly smoothly, with good will on both sides. To Clause 9 I will, if I may, for the moment omit reference at any length, because it deals with a different subject matter—what are called civil claims, which are covered by a different Article of the Convention. I will come back to that clause in a moment.

Clause 10 deals with the question of membership of "civilian components" of visiting forces. It is rather an awkward expression, but I do not know of a better one. As your Lordships will see, the clause provides proper means for determining and ascertaining who are such persons. I think that I need say no more than that about it on this occasion. Clause 11 is a clause dealing with evidence, and there again I do not think there is anything to which I need call your Lordships' particular attention, except that I may perhaps refer to subsection (3). You there find that it is provided that where a certificate is to be issued by or on behalf of the appropriate authority in connection with any charge, to the effect that the charge can be dealt with under the law of the country of the visiting force, the certificate of the appropriate authority is to toe regarded as conclusive. I must call particular attention to subsection (4) because your Lordships will have noticed that when I was dealing with Clause 3 I made specific mention of the class of cases where exclusive jurisdiction is given to the service court of the visiting force, namely under subsection (1) (a) where an offence is committed in the course of duty. At once it will occur to your Lordships: who is to say whether it was committed in the course of duty? And at once a controversy may arise. That is a knot which has to be cut. Subsection (4) provides that: Where a person is charged with an offence against United Kingdom Law and at the time when the offence is alleged to have been committed he was a member of a visiting force or a member of a civilian component of such a force, a certificate issued by or on behalf of the appropriate authority of the sending country, stating that the alleged offence, if committed by him, was committed in the course of duty as a member of that force or component, as the case may be, shall in any such proceedings as aforesaid be conclusive evidence of that fact. 463 There is no other way I know to deal with such a matter except to give to one authority or the other the absolute right to say whether the act which was done was done in the course of duty.

Clause 12 deals with a number of definitions. I think I should perhaps refer to subsection (2) which reads: References in this Part of this Act to a person's having at any time a relevant association with a visiting force are references to his being at that time a person of one or other of the following descriptions, that is to say:—

(a) a member of that visiting force or a member of a civilian component of that force;
(b) a person, not being a citizen of the United Kingdom and Colonies or ordinarily resident in the United Kingdom, but being a dependant of a member of that visiting force or of a civilian component of that force."

Your Lordships find in subsection (4) definitions of the expression "dependant," defining it as

"(a) the wife or husband of that person; and
(b) any other person wholly or mainly maintained by him or in his custody, charge or care."

So there is undoubtedly a somewhat large class of persons who fall within the scope of the Bill.

Part II deals with a somewhat different subject matter. It deals not only with members of visiting forces, but also with deserters and absentees without leave, and provides for the apprehension and disposal of deserters and absentees without leave within the United Kingdom from other forces. In Part III, Clause 15 provides for the extension of the Act to the Colonies and Dependencies. Clause 16 provides for the proof of facts by certificate, and Clause 17 for interpretation. I think there is nothing else in the Act until I come back to Clause 9, but, if you look at the Schedules, you will see that offences against the person and offences against property are there defined.

Finally, I return to Clause 9 of the Bill, which is designed to carry out the provisions of Article 8 of the Convention to which I have referred. Article 8 aims at settling in a convenient way the claims which are likely to be made by civilian persons against members of visiting forces. It is clear that these claims must be fraught with all sorts of difficulties: 464 the difficulty perhaps of identifying the man—it may be a soldier who was driving a lorry; the difficulty of service upon him; the difficulty, indeed, the impossibility, of making his employer—namely, the authority of the visiting forces—responsible, since State Immunity will at once be pleaded by such an authority. Accordingly, the Convention aims at a settlement for which the several States make themselves responsible for dealing with claims. The provisions of the Article of the Convention are very elaborate and I do not think I need say more about them.

Clause 9 of the Bill provides that: The Minister of Defence may make arrangements whereby claims in respect of acts or omissions of members of visiting forces, or of other persons connected therewith to whom the arrangements relate, being acts or omissions of any description to which the arrangements relate, will be satisfied by payments made by the said Minister of such amounts as may be adjudged by any United Kingdom court or as may be agreed between the claimant and the said Minister or such other authority as may be provided by the arrangements; and any expenses of the Minister of Defence incurred in satisfying claims in pursuance of any such arrangements or otherwise in connection with the arrangements shall be defrayed out of moneys provided by Parliament. It is the need for the financial provision contained in the last three lines that makes it necessary to insert this clause. The Minister of Defence could not make arrangements and carry them out satisfactorily unless he was authorised to use moneys provided by Parliament. In fact, arrangements either already have been made or will be made by the Minister of Defence by which this clause will be implemented. The common case will be where a man who thinks he has suffered some wrong makes a claim to the Claims Department of the War Office—the body which deals with claims made by any person who conceives himself to be wronged by any act of the War Office or of any Forces of the Crown. A claim is made, it is considered, an award is made, if it is thought fit, and the claimant can accept the award if he thinks fit, or if he does not think so, he can sue.

Under Clause 9 of this Bill claims against visiting forces will be treated in the same way. There is nothing in this which will abrogate any legal right which a citizen of this country may have against 465 a member of a visiting force whom he conceives has wronged him and nothing to prevent him from pursuing this action as he thinks fit, although, as I have said, many difficulties may stand in his way. This Bill makes additional provision for his assistance. He can make his claim; it will be considered, and if the authorities think he has a good claim, and that it can be met by a proper payment, he will be offered that sum. If he rejects it, he is left with his claim against the person who he thinks has injured him, if he can find him. As I have said, the arrangements are very elaborate and perhaps on a later occasion, if it be necessary, I can go into them. That is not the major part of the Bill. The major part is that which deals with criminal jurisdiction. With these words, which I am afraid may not have been altogether clear or altogether adequate, for a Bill which, admittedly, is of great importance, I commend it to your Lordships and ask your Lordships to give it a Second Reading.