Clause 1. — (Provision with respect to the discipline and internal administration of visiting forces.)

Part of Orders of the Day — VISITING FORCES (BRITISH COMMONWEALTH) BILL [Lords.] – in the House of Commons at on 7 March 1933.

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Photo of Mr Herbert Samuel Mr Herbert Samuel , Darwen

I have added my name to the Amendment which has been placed on the Order Paper by the hon. and learned Member for East Bristol (Sir S. Cripps), and should like to speak briefly in support of his argument. He has raised a point which, as he says, is not trifling or insignificant, hut brings up for review a grave question of principle. Lord Buckmaster, an ex-Lord Chancellor, has stated, in opposing the provision in the Bill as it now stands, that this is one of the gravest matters with which he has ever had to deal; and one of the most distinguished Law Lords, Lord Atkin, writing to the "Times" on this very point, has said that the matter is one of great constitutional importance affecting the liberty of the subject. Hitherto, in these Debates, only members of the legal profession have taken part, either in the one House or in the other, and it is with some diffidence that I venture to intervene. But, after all, on a matter of this kind laymen have also a right to be heard, for the question touches all our fellow subjects.

It is odd that although, in the Debates which have taken place in both Houses, many lawyers have taken part, belonging to many parties, all are of one mind except those who are members of the Government. Every legal authority in this House or in the other has expressed objections to this Bill precisely on the ground that has been put by the hon. and learned Member for East Bristol. I hope that the Solicitor-General, when he replies, will not say that I am estopped from criticising on the ground that the Bill may have been approved in principle by the Cabinet when I was recently a member of it. It was regarded, of course, as a purely departmental matter. This point had not been drawn to our attention by anyone, and I cannot regard myself as being debarred from criticism on the ground that it was introduced some time ago when, it may be, I was a member of the Government, though I am not sure that it passed the Cabinet at that time.

That the Bill as a whole is needed, no one denies. There must be a Bill of this character. Neither the hon. and learned Member for East Bristol nor anyone else in either House has objected to the necessity of the Bill. It is made necessary by the Statute of Westminster and, if such legislation were not put upon the Statute Book, there would be no military law and no discipline for any forces visiting this country from Dominions which had adopted the Statute of Westminster. But the point is simply whether or not a court-martial established by one of these visiting forces should be absolute in its determination, and its decision not open to review even under a writ of habeas corpus. It has been said in previous Debates that cases in any event will be exceedingly few, and hardly ever is a writ of habeas corpus issued in connection with a court-martial. That may be true, but it is also perhaps the fact that the possibility of such a writ being issued keeps courts-martial up to the mark. Recourse may be had to the civil courts, and the courts-martial are aware of that fact. If recourse to the civil courts is abolished, a right which is thought to be unimportant may have become most urgently needed. If in any given ease it is said that there are few appeals, or practically none, from the lower to a higher court and, therefore, appeals may be abolished, that is obviously a most unsound and illogical argument. It may be because there is a right of appeal that few appeals, in fact, become necessary.

Let it be remembered that a military court may consist of a single commanding officer. These visiting detachments will often be small detachments. There will not be all the organisation and paraphernalia of an army and of military courts on a large scale. These may be very small and not highly organised tribunals. It is very possible that one of these courts might stray outside the confines of military law, not purposely but through lack of knowledge, military officers not being trained lawyers. Mark the provisions of the Sub-section against which criticism is offered. The Bill says: For the purposes of any legal proceedings within the United Kingdom the court shall be deemed to have been properly constituted, and its proceedings shall be deemed to have been regularly conducted, and the sentence shall be deemed to be within the jurisdiction of the court and in accordance with the law of that part of the Commonwealth, and if executed according to the tenor thereof shall be deemed to have been lawfully executed, and any member of a visiting force who is detained in custody in pursuance of any such sentence, shall be deemed to be in legal custody. No one has a power of review. We are asked to enact that. The only matter in which there is a power of review is whether or not a particular person was, in fact, a member of that force and, if that is not challenged—if he was admittedly a member of the force—anything that the military court does is to be deemed to have been rightly done and no one is empowered to challenge it under a writ of habeas corpus. It goes on to say: For the purposes of any such proceedings as aforesaid a certificate under the hand of the officer commanding a visiting force that a member of that force is being detained for either of the causes aforesaid shall be conclusive evidence of the cause of his detention, and a certificate under the hand of such an officer that the persons specified in the certificate sat as a service court of that part of the Commonwealth to which the force belongs shall be conclusive evidence of that fact. So that a single officer has the right to sign a certificate to say that he has sat as a court, that he has taken such and such action, that he has arrived at such and such a conclusion, that he has sentenced such and such a person to such and such a sentence, and no one can challenge any of those facts. The Bill states that all the proceedings of the court shall be deemed to have been properly conducted. I agree with the hon. and learned Gentleman that that is a provision which this House ought not to be asked to enact. An individual may have a legitimate grievance. You cannot assume that an error of judgment is never made. A grievance may not be trivial. It may be right. He can get no redress in this country. A British soldier in exactly the same position sentenced by a British court-martial can, in a proper case, sue for a writ of habeas corpus and the civil courts can intervene. The Dominion soldier cannot, if the Bill is passed, have the same rights as the British soldier in this country, He will have no effective rights also in his own courts, for, in the first place, in those Dominions, some of which are distant, it might take a very long time to set them in motion, and while they are being set in motion the sentence may be completed and served. Even if Dominion courts were to take action, as the hon. and learned Gentleman has said, their writ will not run in this country, and therefore they cannot give him any effective redress.

There is another point which appeals to me very much as having been Home Secretary recently and at an earlier period. The Home Secretary is responsible for the prisons in this country. Everyone confined in a prison is under his supervision and the guardianship of the Prison Commissioners who come under his authority. These soldiers in the Dominion forces may be sentenced, and if they are sentenced they may be confined in a British prison in this country under the supervision of the Home Secretary, or in detention barracks. Clause 2 (2) states that His Majesty's Government may by Order in Council 20 provide, and it is obviously intended that there should be such provision. If a Service court such as has been described sentenced any soldier to penal servitude, imprisonment or detention, he may be confined during the whole or part of his time in prison in the United Kingdom or in detention barracks of the War Office or the Admiralty. The Home Secretary would have no right to advise the exercise of the Royal Prerogative and to release such a man even if he were convinced that injustice had been done. He would have to be detained under the powers of this court and under this Statute. It could only be by moving the Dominion Government that anything could perhaps be done. Therefore, the Home Secretary might conceivably be in a most unenviable position into which, I submit, he should not be placed, and he would know that no recourse could be had, either under his direction or initiative to a court of civil justice in this country to determine whether the man was rightly imprisoned or not.

The Financial Secretary to the War Office in a previous Debate said that we were not concerned with all this, and that it was a matter simply for the Dominions. If they were willing to run the risk of such things happening that was their business and not ours. He used these words: So far as rights hitherto enjoyed by British subjects living in those Dominions are concerned, it will in future be their own funeral to look after those rights and to see that they are preserved. Therefore, when members of the British Empire coming from South Africa visit this country, it will be for them and for their own nation to look after their liberty."—[OFFICIAL REPORT, 15th November, 1932; col. 1092, Vol. 270.] In the first place, I do not think that we can accept that as sound doctrine. Someone ought to look after the liberty of British subjects living in this country sentenced within these territories, and perhaps confined in a prison for which this House provides the charge and which is supervised by a British Minister of the United Kingdom. There is another reason. This is part of a reciprocal arrangement. What is being done for Dominion forces here is to be done for United Kingdom visiting forces in the Dominions. That, to use the hon. Gentleman's colloquial phrase, is our funeral. We have to look after the liberties of our United Kingdom soldiers who may be in the Dominions. If what he says is true, that, if there is any derogation of responsibility, it is the Dominion's concern and not ours, it is very definitely our concern to take cognisance of all these facts, in view of the circumstances that this precise provision is to apply in Dominion legislation and that United Kingdom soldiers visiting South Africa or Canada, or wherever it may be, are ultimately to be deprived of all recourse to the civil courts of the Dominions which hitherto they have always enjoyed.

Until now a British soldier sentenced by a court-martial in any part of His Majesty's Dominions, if there is reason to think that the court has overstepped its jurisdiction or acted wrongly, has a right through habeas corpus to appeal to the civil court. That is to be taken away not only from Dominion soldiers here but from United Kingdom soldiers in the Dominions. Therefore, it is a matter which affects us very closely in this House to-night. It is not derogatory to the Dominions to say that we wish to maintain the right of habeas corpus here. It is said that the Dominions wish it to be done in this way, that they object to their soldiers having recourse to United Kingdom courts, and that it would be derogatory to insist on our civil courts having the right to intervene. It might be derogatory if it were one-sided, but if we are ready to accept a decision of the Dominions courts in exactly the same way that we have done hitherto when our soldiers are visiting the Dominions and are sentenced by a military court, there is nothing derogatory, and the Dominions and the United Kingdom will be on precisely the same footing in law and in practice, as the Statute of Westminster requires.

Therefore, it appears to me that the matter should be reconsidered. It is true that an arrangement has been made but perhaps these considerations were not prominently before the minds of those who were engaged when the mutual arrangement was made. The Dominion of South Africa has passed legislation on these lines, but that legislation could very easily be modified by an amending Bill passed through the Dominion Legislature to modify their Measure by embodying the small alteration which the late Solicitor-General has now brought before this Parliament. It is far better that that should be done than that we should consider ourselves bound by the fact that South Africa—the only one of the Dominions so far to do it—has passed legislation in this way, to do what is obviously a wrong thing.

Habeas corpus is a fundamental right of the subject and always has been so regarded. A soldier is still a citizen. He has the obligations and the immunities of the civil law. A soldier who, when taking military action, is ordered by his commanding officer to fire on a crowd, and does it wrongly, is amenable to the civil law. He cannot claim military privilege; he is a citizen. According to the ancient Constitution of Britain the civil law is supreme over the military, and they have and should have the right of recourse to the civil law and to any protection that it can give. United Kingdom soldiers in this country are protected in this way. Dominion soldiers in their own country are protected in this way, and it is wrong: that Dominion soldiers in the United' Kingdom and United Kingdom soldiers, in the Dominions should be deprived of this protection. When we remember that an ex-Lord Chancellor, an ex-Lord Chief Justice, Lord Reading, and one of the most distinguished of our Law Lords, Lord Atkin, should have stated in Parliament and out of it, by speech or vote, that they consider this provision wrong, and that the right of habeas corpus should be maintained, I hope the House will support the Amendment of my hon. and learned Friend.