There was a little doubt in my mind about selecting the first Amendment on the Order Paper in the name of the hon. Member for the English Universities (Mr. E. Harvey), but I will call the hon. Member so that he may move it, with the reservation that if I find it necessary I shall withdraw it from the Committee.
I beg to move, in page 2, line 18, to leave out "no review or to."
I thank you, Sir Dennis, for giving me the opportunity of moving this Amendment, the effect of which is to provide that there shall be an opportunity of review in all the decisions of the special courts. The Home Secretary has made it clear that he regards it as of the utmost importance that these courts should function with celerity. I think that the Committee recognises the need for that, and this Amendment would in no way prevent the speedy functioning of the special courts, but it would secure that there would be an opportunity left open in all cases for review of the decision of the court. We are in this Bill taking away, because of the present emergency and the special difficulties of the areas concerned, safeguards that have been regarded as of immense value by the citizens of this country. Trial by jury necessarily disappears because of the special conditions prevailing at the time we are contemplating.
If that is taken away, we ought to secure therefore that there should at least be an opportunity for some form of review to replace the right of appeal in every case. It applies with the greatest importance to cases of capital punishment. I am aware that in those cases the Home Secretary always, in the ordinary course, exercises his duty of advising as to the use of the Royal Prerogative. That would not be interfered with in any way by providing for a review, but the review would take the place that the Court of Criminal Appeal now takes and give an opportunity for further consideration of the circumstances, and, if need be, of new evidence that might be adduced, which it was not possible for a special court, sitting in an emergency and called very hurriedly, to consider.
Already the Government have felt it right to have a general review of all cases where offenders have been brought before a court and sentenced, under a recent Regulation, for gloomy and depressing propaganda. If it is necessary to have a review in such cases, surely it is far more necessary that there should be an opportunity of reviewing the more serious cases which are likely to be dealt with by these special courts. There may not only be cases of capital punishment; there may also be heavy sentences, and it is very desirable that in those cases, too, there should be opportunity for review. It is not enough to say that when the emergency is over months or, perhaps, years hence, there will be a general review of any such long sentences. We all know that the best judges may sometimes make an error of judgment. The decisions of the Court of Criminal Appeal show that, and therefore we ought to have provided in the framework of the Bill itself some machinery for review and leave the detailed machinery for the Home Secretary to work out in the Regulations. It is desirable that Parliament should secure this as a right of the subject, and I hope the Home Secretary will make it clear that he does contemplate such review in all serious cases and will agree that some words should be inserted into the Bill which shall secure this important right for those which come before a special court.
I desire to support the Amendment, because I believe that not merely in the operation of the law but in the principle behind the law there is much to be said for giving anybody who may be charged the feeling that he will get a fair deal. It is not merely that the law should be just, but that it should appear to be just, and it is not merely that it should appear to be just on the part of those administering it, but to those who may be, for the time being, victims of it. One can easily understand the difficulty in which the Home Secretary will find himself, for this is quite a new type of legal machinery. I want to commend the Bill to the extent that it does avoid the operation of martial law that otherwise would have been used in substitution for the civil process. Notwithstanding that fact, however, I realise that we may find a set of circumstances with which it is most difficult to deal, because of the confusion existing at the time of the commission, or alleged commission, of the offence, in the slow manner of our ordinary courts of justice. However one may argue as to the necessity of the expediency of the case, there must be given to the individual the right which he has in every other circumstance—the right of review of his case. So far as I understand it, if in this instance he is not to be given the right of review, it will be the only type of legal machinery, with the exception of martial law, where the individual is not given some soft of appeal right. It is because I believe that we have to be prepared and because of the situation in which we find ourselves that we must be willing to surrender a great deal of our liberty, but there are limits which must be set so that the country shall have the feeling that at any rate there will be less chance of injustice being done than would have been done by panic action at a time when emotion has obtained the superior power it always possesses over the reason of people who are administering the law.
So far as I remember, under military law, if there is no actual appeal, there is a review of a sentence, and it is always confirmed by higher authorities. Therefore, I must admit that when I saw this Bill one of the things which concerned me most was this Clause, which provides that there should be no review. I cannot help feeling that judges and justices who might have to pass death sentences would themselves much prefer to have the knowledge that after they had passed such a sentence it would still have to be confirmed by a higher authority. There is one other reason why I think this is extremely important, and it is this: I can imagine cases arising where the death penalty is the appropriate sentence and where, under the necessity of discipline, law and order, the judges may feel it highly desirable that they should pass the death sentence and yet, at the same time, would wish to have at the back of their minds the thought and knowledge that, the death sentence having been passed, it would still be possible for some higher authority to remit the sentence or impose a lesser penalty.
I have no reason whatever to know what sort of answer the Government will give to the appeals made to them, but it would not be unexpected if the Home Secretary said, "I quite recognise that there ought in most cases to be some right of appeal, and I propose to deal with it when I make the Regulations under the Bill." I hope that on this occasion, however, the Minister will not make that answer. I remember that in the Second Reading Debate, when it was suggested to the Government that the House was very ready to give them all the powers they desired, but thought those powers ought to be defined in the Bill, which ought not to be left as a kind of blank cheque to be filled in by the Government, the reply of the Attorney-General was that the Government could not, in a Bill where speed was necessary, provide a new judicature dealing with every point of principle and procedure in the way in which the administration of justice in this country would be normally dealt with. On the whole, I think that was a reasonable claim to make, but it ought not to be carried too far. There are some major points of principle which could be, and which ought to be, in the Bill. We cannot ask that they should all be closely defined, but when you are dealing with such elementary aspects of justice as the right of representation and the right of appeal, is there really any insuperable difficulty in putting them into the Bill?
If the Government took the view that an appeal or review should not be provided, no doubt they would make that case, and we should have to consider it on the merits. But if I am right, as I think I am, in assuming that they do not say that; if their view is that where circumstances permit, or in certain classes of cases, there should be some appeal or review—if they concede that principle surely they will also concede the principle that on such an important point the right of appeal should be safeguarded in the Bill itself and not left to the discretion of the right hon. Gentleman or his successors or to some discussions in which, necessarily, only a few of us can take part. I agree that it may not be possible to define that right in detail in the Bill. I agree that it may be necessary to deal with some part of it by Regulation, but unless the Government say that there should be no review or appeal at all, provision should be made for it in the Bill If the Government concede the principle of a review or appeal, let them make no bones about it. Let them make sure that that right is preserved to the citizen, in the Bill itself, so that it shall not be open to any Government or any Minister at any future time, to deprive any accused person of a right which he ought to have, without getting the authority of this House for such deprivation. It cannot be a matter of argument that in most cases the right of appeal or review ought to exist, and if that is common ground, I see no reason why the Bill should not provide for it and put it beyond dispute.
I am not sure what the Mover of the Amendment has in mind. It is not clear whether he wants an appeal from the sentences of these special courts or a confirmatory review of their findings. If the former, my own view is that if it is decided that these special courts are necessary in the circumstances of the time, it will be impossible to have the ordinary machinery of appeal such as now exists. Obviously, that would defeat the end for which the courts are being established. But if the Mover of the Amendment had in mind that there should be a review of the findings of the court and not an appeal against those findings, I cannot see why the Government should not strengthen its position in the eyes of the people by making it clear, in the Bill and not in the Regulations, that the findings of these courts will be subject—in the same way as the findings of courts martial and in no other way—to review by some other individual who will countersign the sentences.
In the case of the ordinary sentence of imprisonment or a fine, I do not think there is much which need trouble us. No doubt, at the end of this war, which may come soon, or may be a long time ahead—though I think perhaps it will be soon—any sentences of these courts, which are thought to be manifestly unjust, will be capable of review. They can be brought up in this House with the demand that an inquiry and review should take place. But the death sentence is a different thing. You can remit a sentence of imprisonment which has been passed on a man, and you can return him what he has paid as a fine, but if he has been hanged or flogged you can never undo it. As far as the death sentence is concerned, there should be confirmation of the findings of the court by somebody else, I do not mind by whom—it may be the Home Secretary, or the Chief Commissioner, or the senior military officer of the district. But somebody else should confirm the finding in the same way as the findings of courts-martial are confirmed. I do not think the hon. Member for South Tottenham (Mr. Messer) was correct when he said that in the case of courts-martial there was no review but there was an appeal. It is the other way round.
I think the object of the Government is to strengthen, in the minds of the people, belief in these courts, and the feeling in this Committee and certainly the feeling outside, is that whoever may be president of a court, however good a judge he may be, one man's finding ought not to stand without being countersigned by somebody else. As I say, in the case of fines it does not matter so much, but in the case of the death sentence such a procedure is essential and I think it the duty of hon. Members here to see that some provision to that effect is put, not into the Regulations but into the Bill which is the proper place for it. We should not be doing our duty, if we did not press the Government to insert such a provision in the Bill. I know that the Home Secretary is anxious to meet us. No doubt there are legal difficulties in the way, but I ask him to give the matter earnest consideration. This Amendment may not carry out exactly what the Mover intended, but some form of words might be found which would make it clear that there was to be some review of the finding of the court, apart from that involved in the existing exercise of the prerogative of mercy by the Crown.
It was impossible not to be impressed by the speech of the Mover of the Amendment, and it is unnecessary to enlarge on what has been said. Roger Ascham says somewhere that when you want to say a thing over again, it is much better to repeat the same words, instead of pretending that it is something different. I agree with practically everything that has been said by the previous speakers. This Bill, undoubtedly, has roused a certain amount of suspicion in the country. Nobody can deny that. I cannot imagine anything which would do more to remove that suspicion than the acceptance of this Amendment, apart from the very high respect which we all feel for the hon. Gentleman who moved it. The Amendment can do good, and I do not see how it can do any harm. Therefore, I strongly urge it on the Home Secretary.
I realise that concern has been felt in many quarters of the Committee with regard to the matter now under discussion, and I say, frankly, that I appreciate and sympathise with that concern. I shall try to clear the issue. I think there are several considerations that we should, if possible, keep clearly in mind. In the first place, when we talk of a review, we must be clear what we mean by a review. We might mean a review by some judicial process. We might mean the sort of review which takes place in connection with the exercise of the Prerogative of mercy. That is the first point on which we have to be clear. There is also this important consideration in connection with any review of sentences. The review of a sentence which is not a sentence of death is one thing. It can be undertaken, within limits, at any point of time, but if there is to be a review of a death sentence, it must, for practical reasons, be within a very limited period of time.
Let me say first that what we had mainly in mind in inserting these words which it is proposed to leave out, was a review of a judicial nature. It seemed to the Government, having regard to the circumstances in which these special courts would be set up, that however desirable in theory it might be to provide for some further judicial review by way of appeal, or by way of processes more familiar to hon. Members learned in the law than to me—though I know the names by which they go, such as "mandamus" and "certiorari" and so forth—it seemed to us inconsistent with the purpose of the Bill, which is to provide a simple, expeditious, criminal procedure, to attempt to include provisions for a further judicial review. When we come to the other question of the review in connection with the Prerogative, it was never in our minds—and I want to make this perfectly clear—that we should seek to exclude, either in the case of the capital sentence or in the case of lesser sentences, the right which everyone has to appeal to the clemency of the Crown. Indeed, in the case of the death sentence, as I think hon. Members know, a review is made by the Home Secretary as a matter of course, irrespective of any representations which may be made by a convicted person before sentence of death is carried out.
In regard to what I have said about a judicial review, I think I have made it clear that we do not consider that, in practice, it would be possible to make provision for such a review. My hon. and gallant Friend the Member for Epsom (Sir A. Southby) appeared to have in mind something of an intermediate nature between a judicial review and a review in connection with the exercise of the Prerogative, when he spoke of some other person countersigning the sentence. I think he had in mind the analogy of a court-martial, but I do not think there is an analogy between the proceedings of a court-martial and those of the sort of court contemplated in this Bill, a court which will be presided over in every case, we believe, by an officer experienced in judicial work of a high order. We hope that for the most part, the presidents of these courts will be judges of the High Court. It would surely be out of the question to provide that sentences passed by a judge of the High Court or a person of corresponding standing, should he countersigned, as it were, by some other person.
Yes, sentences are altered on appeal in some cases, but, as practical men, we cannot see that it is possible in this case to provide for an appeal by judicial process. I do not want, however, to be difficult or obstructive, and I suggest that we might go a long way to meet the genuine difficulties and misgivings of those who have criticised the Bill as it stands, by introducing two Amendments. I will indicate the general effect of the Amendments which I have in mind. In the first place, we might add words to make clear that the kind of review which will be excluded or which may be excluded, is review by judicial process or review by a court. That is the first Amendment, which might, perhaps, be made on the Report stage. The other Amendment which I would suggest deals with the particular case of the death sentence.
I am quite willing to propose on Report the insertion of words which will make it quite clear that provision must be made by Regulations for securing that no sentence of death shall be carried out until the question of reprieve has been duly considered. [HON. MEMBERS: "By whom?"] That means considered by those whose duty it is to advise the Crown, because a reprieve is the exercise of the Prerogative of mercy, and only a Minister can effectively consider what advice should be given to the Crown. There is nothing at all in the Bill to suggest that any exercise of the Prerogative which would be available in ordinary circumstances is to be excluded in the case of persons tried by these special courts. Whether the sentence be a capital sentence or something less, the Prerogative remains intact. In regard to the death sentence, there will be a specific provision to ensure that the Regulations shall provide that such a sentence shall not be carried into effect until there has been proper consideration of the question whether the Prerogative of mercy can be exercised.
That is rather a technical matter. We will bring up whatever form of words we think most appropriate on Report. I am dealing with the substance of the thing now. I am not a lawyer, but am dealing with it from the point of view of the Home Secretary, as the Minister responsible for the Bill. Putting in the words that I suggest in regard to the death sentence will not, of course, have the effect of limiting the exercise of the Prerogative in other cases. Cases in which a lesser sentence is imposed are, from a practical point of view, on an entirely different footing from the case of the death sentence. In the case of sentences less than the death sentence there will be nothing to prevent the Home Secretary, the Minister responsible, from reviewing at any time in whatever way he thinks most appropriate, individual sentences or sentences in general which may have been passed in a time of grave emergency in a particular area. The Prerogative will remain absolutely intact. I hope that what I have said will go some way, perhaps a long way, to relieve the anxieties of hon. Members in this matter.
The Home Secretary has made a very important speech, and he expressed the hope that it might allay a good deal of the difficulty which many of us feel. First of all, let me dispose of the trouble that has arisen in the course of the discussion between the word "review" and the word "appeal." As far as these courts are concerned, I have admitted from the first that I did not see how the Home Secretary could give a right of appeal, but in regard to review I felt that there was a case for pressing upon him the desirability of meeting apprehensions which had been expressed. To-day he has told us he is trying to meet our difficulty by saying that he will give a review. He has offered us a review of the sentence, not a review of the decision, but only a limited review of the sentence in the case of the death penalty. What is to happen in the other cases? In saying that, he is not giving us any concession at all. The right of reviewing a sentence of death is inherent in the Crown, and he cannot take it away from the Crown. No one else can take it away from the Crown. He is not making any concession by saying he is prepared to review sentences of death.
But there is a much more considerable point than that. These courts are being given very great powers. There may be cases in which the accused person is entitled to complain that he has not had a fair trial, and it must be remembered that it is a trial by two or three persons. It is not a trial by jury. I was hoping the right hon. Gentleman would say, "I will make provision that a review shall be provided." He has not done that. I am wondering why. He has asked for most of the trouble that he has got. In this case he has asked for it because in this Clause he talks about the proceedings of such courts being subject to no review or to such review as may be so provided. What had he in mind when he introduced the Bill? Did he have it in mind that there should be no review in any circumstances? If so, why did he not say so? Or did he have it in view that there should be a review in certain cases? He must have held the one view or the other, so why on earth go to the trouble of saying either "subject to no review" or "subject to such review as I under Regulations may declare"? It is simply adding to the difficulty and absurdity of the whole situation to introduce a Clause containing those words.
There is, however, a much more serious issue of very grave constitutional concern, because the right hon. Gentleman introduced into his speech two words of whose meaning he said he did not pretend to be perfectly certain—"mandamus" and "certiorari." I understood, on my reading of the Bill, that whatever powers the Home Secretary took to himself, the old rights of mandamus and certiorari were not affected, and I think I am not alone in so thinking. I did not raise it before, because I took that to be the position. But the Home Secretary himself has introduced a statement which completely revolutionises the position, because, as I understand it, he interprets the Bill as giving him the right to deprive citizens of the country of the old standing rights of mandamus and certiorari. I should like to know from the Attorney-General whether that is the position, because, if it is, the House will not let him have the Bill this week or next. So long as those fundamental rights of the British citizen are still preserved, whatever powers the Home Secretary may require for defence purposes, I am prepared to let the Bill go though, but if he tells me it means that those fundamental rights are to be taken away from citizenship of the country, I will fight the Bill line by line, word by word, on the beaches, on the hills, and everywhere else. I hope the Home Secretary will reconsider in the course of the next half-hour whether he really meant what he said about that, because it is the most serious thing I have heard proposed in the House or anywhere else. I beg him to clear up the matter once and for all.
I think there is some misconception about mandamus and certiorari. They are writs directed to inferior courts, primarily directed to a state of affairs when an inferior court may have exceeded its jurisdiction. These special courts will have complete criminal jurisdiction. The whole basis of this Bill is that there should be a court ready to try any offence, however serious, which the military situation demands should be tried speedily. Therefore, it seems to me that the idea that some right is being taken away, or that people anticipated that these courts would be subject to a writ which is directed to absence of jurisdiction in an inferior court really misconceives the position which these courts will have.
I have little or no acquaintance with these legal definitions. I approach the matter, as I imagine most of my hon. Friends will, from a practical and commonsense point of view, indeed from the standpoint of the man in the street. When some of us met the Home Secretary we expressed great concern on this matter, and I gathered that he was somewhat apprehensive himself of the effect of the action that is contemplated in the Bill. He promised, as I understood at the time, to furnish a form of words which might meet the views which were then expressed, and which indeed have been expressed in the course of this Debate, but the offer that he has made in the two suggested Amendments does not go as far as some of us would like. As it seems to me, the review that he proposes is no more than the Prerogative itself. After all, it is always open for the legal representative of the person sentenced to death to apply for an appeal. The Prerogative is always there, and, as I understand it, it takes the form that representations are first of all made to the right hon. Gentleman. Therefore, I detect no substantial difference.
What is the right hon. Gentleman's purpose in this regard? He envisaged circumstances where speedy legal process is essential. But surely that only applies to an area where there is possible confusion or disorganisation and where the courts cannot normally function. Surely, it will not apply to the whole of the country, and it will be possible for a court of appeal, for example, to function in some part of the country where confusion does not reign. Suppose that a court of the kind contemplated in the Bill sat in the North-Eastern part of the country or in Wales, where there was confusion arising out of military operations or apprehended military operations, and a sentence of death was passed by the civil court. Surely, the appeal against that sentence could be heard in London, or Oxford, or Reading, or Cirencester, or in any part of the country where it was possible for a court to function normally. Consequently, I cannot see why an appeal of the kind suggested should not be permitted.
I want to put to the right hon. Gentleman a point of view which I have expressed before. I can envisage, in the circumstances resulting from a state of confusion arising from military operations, that there would be a breakdown of the food distributing machinery, and, as a consequence, working men and their wives might be unable to obtain food supplies. Is it not possible for hon. Members to contemplate that those people, in a state of starvation or semi-starvation, might engage in what is ordinarily described as looting—taking a loaf of bread from a nearby baker's shop that has been vacated because of military operations, or purloining a tin of salmon or corned beef? I understand this would be regarded as looting, and it might well be that, in the circumstances prevailing, a civil court might regard such an act as justifying a sentence of death, largely from the standpoint of its deterrent effect. I understand that one of the primary purposes of the Measure is that it should act as a deterrent against looting. I do not want to see any working-class friend of mine or of any hon. Member placed in that position.
Anybody faced with the possibility of starvation might be tempted to do the same thing. I do not want to see anybody placed in that unfortunate position. It seems to me that there ought to be a right of review, in the sense of a right of appeal, to the highest court in the land. I cannot see that there would be any physical difficulty in constituting a court of appeal so that sentences of this kind could be properly reviewed, with evidence submitted, if need be, and proper representations of a legal character tendered. In the case of minor offences or lengthy sentences—when, for example, a person is sentenced to 10 years' or 15 years' imprisonment—the matter is not the same, because such sentences are always open to review. Questions might be asked in the House at any time and there might be a reduction of the sentence. When a man has been sentenced to death, however, and the sentence has been carried out, I cannot see that there is any advantage in asking questions in the House or making representations to the Home Secretary. There is a vital distinction between sentences of imprisonment for any kind of misdemeanour and sentences of death that may be passed by a civil court. I appeal to the Home Secretary to carry the matter a little further and not content himself with the very modest proposal he has made. The right hon. Gentleman must in this matter bow to the will of the Committee, and to what I imagine is the will of the whole country. We go a long way with him in this Bill. We are anxious to prevent looting or crimes being committed at a time when it is essential that organisation and good conduct shall prevail. At the same time, we do not want to place in the hands of the new judiciary which is being established by this Bill power to sentence people to death for crimes which ordinarily might entail only a modest sentence. I hope the Home Secretary will re-consider the matter and agree to the Amendment that has been moved.
With regard to what was said by the right hon. and learned Gentleman the Attorney-General, I think that he was very largely wrong concerning the law. In the first place, prohibition and certiorari can be directed only to inferior courts, but mandamus can be directed to a much wider range of courts. He was wrong also in telling the Committee that these courts could not be inferior courts. One cannot tell until the Regulations are made what sort of jurisdiction they will have, and—speaking offhand, and it may be wrongly—my first impression is most emphatically that any court set up under the powers given by this Bill, and described as a special court, even if it were given full jurisdiction, would be regarded by the High Court of Justice as a court inferior in the sense that it would be a court to which the High Court could direct either prohibition or certiorari. There may be some hon. Members who are lawyers who disagree with me in that.
The really important point is not whether the Attorney-General was right or wrong in describing what he believes to be the effect of the Bill in this matter, but what is the Government's intention, because there are still opportunities to make this Bill one thing or the other. From the Attorney-General's point of view, it is plain that the Government intend that the High Court shall not test the powers of these courts in any way, by prohibition certiorari, mandamus, review, or anything else. Consequently, if that be the view of the Government—and we know that it is not only the view but the intention of the Government—we shall have to govern ourselves accordingly. When one puts this together with what was said by the right hon. Gentleman the Home Secretary, it means that the Government's desire and intention are that these courts shall be subject to no sort of review anyhow or anywhere, except, of course, that there can be an appeal to the Prerogative of the Crown. There can always be an appeal to the Prerogative of the Crown. The only thing which the Home Secretary has offered is that any person in respect of whom anybody wants to make an appeal to the Prerogative of the Crown shall not be dead before the appeal is made, but shall be kept waiting until the Home Secretary has had an opportunity for an examination.
I cannot see the difficulty about providing for a review. I can understand more or less that summary and strong courts, the decisions and sentences of which shall be clear and unquestionable, are wanted in time of great emergency, when there cannot be a lot of paraphernalia. Once the court has convicted a man and passed a sentence on him, it is either a sentence of death or it is not. If it is a sentence of death, the Home Secretary offers to keep the man alive until an application can be made to the Home Secretary about him; if it is not a sentence of death, it will be the duty of the executive to keep the man alive and in custody. If one can go to the Home Secretary and talk about the man, what is the difficulty in going to some judicial court and talking about an appeal? If it be said that it would destroy public confidence in these special courts if provision for an appeal was made, then we have followed up till now a very efficient method of destroying confidence in all courts, because all courts except two are subject to a right of appeal, and that fact is one of the reasons they work very well. It is a commonplace among all lawyers that, except in courts of the very highest wisdom, one way of making them work badly is to let them know that they are not subject to appeal. It is a question of human failings, and judges are human. In courts where, for one reason or another, in respect of particular cases or in respect of all cases, they happen to be free of perhaps even the entirely subconscious check of the fact that what they say and do may be reviewed in the Court of Appeal, they do not behave as well as courts which are subject to appeal.
Therefore, I humbly suggest to the Committee, first, that the Attorney-General has pointed out that the Government intend to deprive us of one group of remedies which we all thought were present, and which certainly ought to be present; and secondly, that the Home Secretary is offering us, with an air of great plausibility, as a reason for our not pressing the Amendment, something which amounts to absolutely nothing. I suggest further that full and proper provision for appeal, as long as it is not vexatious or long-drawn-out, would make no difference whatever to the efficiency of the courts set up under this Bill.
I should like to follow the first point that was made by the hon. and learned Member for North Hammersmith (Mr. Pritt). I listened very carefully to the speech of my right hon. and learned Friend the Attorney-General. I should always have the greatest diffidence in appearing to differ from him on a matter of law, but it occurs to me that this afternoon there was perhaps something which he overlooked, and I wish to put the point to him. He suggested that it was not reasonable to anticipate circumstances in which proceedings by way of certiorari would be possible in respect of one of these special courts because they would have so wide a jurisdiction in the criminal law that it would not be possible to suggest that something before them was a matter which they could decide. Did he not overlook the fact that these courts may have a very sharp territorial limit?
Suppose that a court is set up for the County of Norfolk, and that an offence takes place in the County of Suffolk. Does my right hon. and learned Friend tell us that if the person who commits the offence is apprehended and taken before the special court in Norfolk, he will not have the right before the High Court to take proceedings by way of certiorari, and say that the special court had no jurisdiction in his case? Surely, that is a very serious point, and either the Attorney-General overlooked it, or we are all under a misapprehension as to what powers would be left to the High Court in the matter. Will my right hon. and learned Friend tell us whether, in a case where a person is apprehended outside the limit of jurisdiction of the special court, brought within their limit of jurisdiction, and tried by them, such a person would have any right by proceedure in the High Court to object to being tried by the special court?
We are considering what powers can be taken under the Bill. If a court proceeded on the basis of having no jurisdiction, it might be that the whole proceedings would be null and void, and that might apply to proceedings in the High Court itself. What I was indicating in my previous remarks was that these words would give power to put these courts on the same basis as the High Court, and that as it was the intention of my right hon. Friend, and obviously the basis of the whole idea, that their jurisdiction should be complete, it did not seem to me that the circumstances in which certiorari or prohibition are a valuable right would in fact ever come into existence. So far as Norfolk and Suffolk are concerned, my hon. Friend the Member for Colchester (Mr. Lewis) has, no doubt, been following the various changes in the administration of justice made necessary by the war, and he will have seen that so far as the ordinary courts are concerned, for obvious reasons, the ordinary rules as to venue have been relaxed, in view of the fact that we might be faced with circumstances where courts could not operate in particular cases, and where the rigidity of old principles of venue would impede the administration of justice. In certain cases the ordinary law of venue has already been relaxed by this House. It would be clearly right that the Regulations should provide for such elasticity with regard to venue, so that the problem put by my hon. Friend the Member for Colchester would not arise. The point of justice is that the trial should always take place under circumstances in which witnesses for the prosecution and the defence—
I am afraid that the Attorney-General has misconceived the whole point. It is not a question of venue or rules as to where a court shall try an offence, but a question of whether an area in which the alleged offence was committed is an area covered by an Order. Taking the example of the hon. Member for Colchester (Mr. Lewis), suppose it had been declared that Suffolk was an area to which this Act should apply, and that just beyond the border of that area an offence had been committed, and in that case the special court to deal with the alleged offences went across the border outside its area of jurisdiction. That would not be a question of venue but whether the court had any jurisdiction. If I understood the question of the hon. Member for Colchester, is it not plain that the High Court would have no power to prevent the special court abrogating to itself a jurisdiction which it did not have?
I venture to suggest that, in spite of the speech of the hon. Member for Nelson and Colne (Mr. Silverman), what I was saying is relevant. In practice I do not think the case which the hon. Member for Colchester suggested will arise. Let me deal with the question on the basis of jurisdiction. It is our intention that these courts, vis à vis, the High Court, should be on an equality. If one takes the analogy within the United Kingdom, these courts take the position of our own courts and the Scottish courts. It might be said that according to ordinary principles there was no jurisdiction in the Scottish courts to try something which had happened here, or for our courts to try anything which had happened in Scotland. In this case prohibition would not lie, nor does prohibition arise from one division of the High Court to another or from one High Court to another. For example, if there were grounds for thinking that the Divisional Court in a criminal cause or matter had done something in which it had no jurisdiction, there is no other division of the High Court to which you could go to get a writ of prohibition or a mandamus. The suggestion is that in these very exceptional circumstances these courts should be in the same position, vis à vis the High Court, as, say, the courts of assize, namely, that you cannot get a writ of prohibition from one against the other.
When the Attorney-General said that it is the intention that these courts shall be on the same basis as the High Courts, how is that intention to be carried out? Is it to be put in the Regulations? It is no good saying that that is the intention unless the Attorney-General proposes to take that course.
I intervene in order to try to bring the Committee back to what we were discussing. I am bound to say that whatever misapprehension there may be between eminent counsel in the Committee, I have no such misapprehension at all. It seems to be perfectly clear that it was the intention of the Government to set up special courts from which there would be no appeal of any kind. That was the intention from the very beginning, and if that intention is not embodied in the Bill, it will be, as the Attorney-General says, embodied in the Regulations. As to whether that is a good thing, or a bad thing, I am not concerned, but what I am concerned about is that, as there will be no ordinary review from these courts, what sort of appeal ought we to give to an accused person? I do not know the names of all these things, but I believe I know the principles behind them. If it is possible for the ordinary process of justice to be applied in these cases, that prohibition and mandamus can be used, obviously the very obstructive process which the right hon. Gentleman wants to avoid will be introduced. The Attorney-General says, "Not at all. It is precisely because these courts are to work with expedition that this Bill has been brought in."
What does the right hon. Gentleman suggest? He suggested that in the case of a death penalty it would be desirable that he should review the sentence before it was executed. What in practice does that mean? It means, in fact, that in the middle of a great crisis when the Minister is involved in dealing with a large number of very important matters, he is suggesting that he will be able to deal with such cases quickly and give adequate attention to the decisions of these courts in respect of the death penalty. Is that a reasonable proposition? He suggested that it would be unreasonable to have any judicial authority to review the decisions of the High Court. That in fact will be done by the right hon. Gentleman in the Home Office. He will not stand before the Committee and suggest that he will be able to give these cases the attention they deserve nor that he can satisfy himself whether the death sentence shall be carried out or not. I suggest, firstly, that physically he will not be able to do it, and, secondly, that he ought to be exempted from the necessity of doing it. If he says that he already does it, my reply is that in such cases the accused person has come to him after having gone through several processes of law, and that, therefore, it is a comparatively limited matter he has to decide. But in this case he will have to review the death sentence passed by one court and one court only, and to do it adequately he will have to take into account all the facts. I suggest that the right hon. Gentleman should not set himself up as a High Court judge, which, in fact, he would be doing to do the job properly. I do not think that a political office such as that occupied by the right hon. Gentleman should be exposed in the way it will be in the kind of circumstances that he has in mind. Many of these decisions may be highly controversial, and he seems to me to be taking a heavy burden upon himself in asking for these powers.
Is there not another very practical consideration to be borne in mind? The hon. Member for South Tottenham (Mr. Messer) addressed a very cogent argument. What happens? These courts are set up in conditions of emergency in a highly charged emotional atmosphere. But that highly charged emotional atmosphere will not be confined to where the courts exist. Does anyone suggest that the whole atmosphere of the country will not at once be changed? We shall all be living under conditions of crisis, and those feelings will be shared by the three judges, by a large number of people in the country, and particularly by the right hon. Gentleman. It is not merely a matter of taking the sentenced person from the area of disturbance, and letting his case be considered by the Home Secretary; it is time that matters. Time should elapse in order that the emotional atmosphere shall settle down before the review takes place. Why is it necessary to carry out these sentences at once? The individuals are in custody, and their powers of harm have been taken away. They cannot injure anyone. But if it is said that you are going to execute a person as a deterrent, then you must shoot him on the spot. If you are envisaging the kind of circumstances which might arise, you must make a spectacle of the offence, but the means of communication would also be disturbed, which would make that impossible. So the right hon. Gentleman's intentions will not be discharged by the method he has suggested in the Bill. I suggest that it is a perfectly reasonable proposition to have some form of review, not a review by the Home Secretary and not an appeal to the Home Secretary. There is no reason why there should not be a judicial tribunal established, ad hoc, not known to the judicature at the moment, nor related to the special courts, and that a special legal tribunal should review the sentences.
May I suggest a further consideration? It is the difficulty of collecting proper evidence in circumstances of this kind. A sentence of death might be passed upon an accused person by one of these courts on evidence which had been collected very hurriedly and hardly tested in circumstances of the kind we envisage in which the court would want its sentence carried out quickly. The review by the Home Secretary will occur soon afterwards because, for reasons which I cannot understand, expedition, according to the right hon. Gentleman, is the essence of this business. The man is executed without any chance having been given to collect fresh evidence. He might have been able in normal times to collect evidence which was not available to him at the time of his trial, evidence which would satisfy the Home Secretary that the sentence was wrong. Ought we to withhold reasonable safeguards from the accused person? The right hon. Gentleman has not made out his case. Conceding everything he wants under the Bill, and even conceding that a special court of this kind, abstracted from the ordinary system of the judicature, is necessary, there is no reason under Heaven why we should not import into the Bill an opportunity for the sentence to be reviewed by a higher legal tribunal in calmer circumstances.
Surely this Debate is an indication of the astonishingly phlegmatic character of the British people. With something like a very grave crisis impending, we have spent hours last night and a long time this afternoon discussing the details of what is, I admit, an important Bill. With the greatest respect, I would ask some of the hon. Members who have spoken against the Bill and who may have been in France, or who have firsthand knowledge of what happened there, to realise that time is the essence of progress in a matter like this. This country differs from other countries because we have not frontiers contiguous with those of other countries, from which refugees could pour in here, and also because our people are more phlegmatic. We are not likely to have the same difficulties as other countries. On the other hand, as I look out from my house over many square miles of country, all of which is in a defence area, I can conceive a situation arising of the greatest import, in which there would be an immediate necessity for courts such as those we are discussing able to take instant action for the preservation of the State and the British Army.
I respectfully appeal to hon. Members to be a little less critical about the details of the Bill and to remember that the Home Secretary has already made a promise that the Regulations will be discussed and that representative Members will have an opportunity of examining them. I suggest, therefore, that the words which the Amendment proposes to leave out should remain and that we should trust the Home Secretary and the Attorney-General. It is amazing that it should be hinted, to put it no higher, that these courts are to be set up to act as some terrible scourge on the people of this country. I do not apprehend that anything of the kind is likely to happen. The point has been raised whether somebody who committed a crime in Norfolk is likely to be able to say that the court is not justified in trying him because it is sitting in Suffolk, There is nothing in the Bill to say where the courts should be set up, and that matter could easily be put right. I am seeking to persuade hon. Members who have spoken against the Bill, to withdraw their strictures and criticisms and to realise that to-day, to-night or tomorrow we may be in the thick of a stupendous crisis. I trust that the Home Secretary will not accept the Amendment and that Members will realise what a staggering situation may arise within a few hours.
The Home Secretary has made no concession. The effect of his statement is that there will be consideration of sentences by the Home Secretary as there is at the present time. Everyone took that for granted; at least, I did, and I cannot understand the type of mind which thought that that would not be done. Surely in setting up these courts it was the intention of the Home Secretary to have that constant review of death sentences which is implicit in the Prerogative. The hon. and gallant Member for Lewes (Rear-Admiral Beamish) said that Members would not talk as they did if they had been to France, and that we might soon be in the midst of a terrible crisis. What happened in France that would make it impossible for courts like those proposed, to have their decisions subject to a review by a higher authority? There was nothing at all.
The hon. and gallant Member does not carry his argument any further. If there was chaos in France and the courts could not function, obviously, according to him, this Bill is useless, because courts could not function if the same thing happened here. I think that there is a lot of defeatism and "jitters" in the minds of Members of the Government in connection with this matter.
We have had experience of it already in the fact that the Prime Minister had to state yesterday that a lot of sentences that had been imposed, would be revised because of the evident misunderstanding of statements by the Minister of Information and of the action that magistrates took. Probably those mistakes would not have been corrected had it not been for some organs of the Press like the "Evening Standard" and the "Evening News," which showed great common sense in connection with this matter. I cannot see why there should not be set up, as the hon. Member for Ebbw Vale (Mr. Bevan) suggested, an ad hoc appeal tribunal to which cases could go.
I suggest that a good deal of the difficulty in this matter arises from the imposition of the death sentence. Would it not be better to consider whether it is necessary to impose the death sentence and whether many of the difficulties in this matter might not be overcome, if the maximum penalty were life imprisonment? That would give an opportunity for revision in calmer times. The individuals concerned would be detained in the hands of the authorities and they could do no further harm. My impression, after lisening to the Debates on this Bill, is that the Government largely misunderstands the situation. I do not think that the chances of invasion are very great because I have heard so much about the strength of the British Navy and our armed forces, and I do not think the people of this country should allow themselves to get so "jittery" and to think that the Germans are super-men, as some of them do. I would like the Home Secretary to consider carefully whether the real solution of this problem is not an ad hoc tribunal to which cases involving the death sentence could be referred.
This discussion has wandered very largely over legal arguments, which are always a mystery to the layman. Apparently there is always a division of opinion on legal matters and it is difficult to get unanimous agreement about them. It seems to me that these arguments are on a side line and have nothing to do with the main point. We are trying, in different ways, to secure that the severe sentences of these courts should not be the sentences of one court or one man, but should be subject to some kind of review. It is very desirable that the courts should act quickly and that sentences should be imposed and carried out without delay. For that reason, the severe sentences only should be subject to revision. It is really unthinkable that the death sentence, on which the argument in this Debate has centred, should be imposed without any review whatsoever on the ipse dixit of one judge, sitting, certainly, with assessors who would, however, be colleagues having no power to modify or influence his decision except by the expression of their opinion. I am not pressing that there should be a retrial of cases, because that would be a mistake, that would involve delay; but a revision by some other legal authority of higher calibre would go far to meet the objections of very many Members of this Committee.
The Home Secretary has really given us nothing. I think we all agree that there is no substance in what he proposed. It does not go any distance whatever to meet the objection that these very severe and heavy sentences, especially death sentences, can be imposed on the ipse dixit of one judge, of one court. It has been suggested that the existence of the Royal Prerogative should not be lost sight of, but that has always been operative, and there is nothing in this Bill to upset that. But there should be some- thing more, and there is great force in the argument used by an hon. Member who recently addressed the Committee, that the Home Secretary will be heavily engaged with many other matters and not able to spare the time to consider revisions of death sentences and the advice which he may have to give to the Crown as to whether the Royal Prerogative should be exercised or not. I do not want to carry the matter too tar, and I have an Amendment later which would secure that lighter sentences need not be subject to revision, but these heavier sentences are a very different matter.
Having listened to this discussion, I think that the view of the Committee, as a whole, is fairly clear to us, and it is not an extreme view. I gather that the Committee wishes that there should be a review. The Home Secretary said that he would make a review, but the Committee wish for a review by some judicial as distinct from administrative authority. Although like the right hon. and gallant Member for Burton (Colonel Gretton), I know little about the law, I am very much impressed by the argument of one of my hon. Friends that a court sitting in these circumstances, with the knowledge that there will be no possibility of appeal or review from its findings, is likely to be a good deal more hasty and slap-dash than would be the case if it knew that its verdict, if too high-handed, could be upset. It would be a great pity to have a Division on this question, but I am sure that the Home Secretary sees that there will be a Division unless he makes some concession, and I ask whether it is not possible to set up an ad hoc tribunal of a judicial character which should act with considerable rapidity, almost with the same rapidity as the right hon. Gentleman himself would have to act. If he would make some proposal of that sort and arrange for it to be inserted in the Bill at a later stage, we might avoid a Division on this proposal.
I should like to re-emphasise the point that was made by my hon. and gallant Friend the Member for Lewes (Rear-Admiral Beamish) and a point made earlier in the discussion by the hon. Member for South Tottenham (Mr. Messer) that we have been in danger in this Debate of forgetting the sort of contingency for which we are trying to provide. We are trying to provide the means by which, as far as is humanly possible, we can avoid recourse to processes of an exceedingly summary character. If we do not set up these special courts and make as good provisions as we can, having regard to the conditions for which we are legislating, to render unnecessary a recourse to methods of summary justice, that course will be inevitable in the conditions of confusion and turmoil which we must contemplate and we shall be doing no service to our people. If we do not have these courts then, as the hon. Member for South Tottenham said, we may have instead what has been described as martial law. We may have the military authorities driven to the necessity, against their will, of dealing with offenders out of hand in order to cope with the situation which has arisen.
I think it might be wise for the Home Secretary to get this point clearly in his mind. Speaking for myself, and I think probably for many others, I say that if it were a question of martial law, or military law, with the safeguards which are provided under it, I would much prefer it to this Bill with no safeguards.
I know that is the view of some of my hon. Friends and, as was pointed out on Second Reading, I think it is a wholly mistaken view, because under what is described as martial law or military law, safeguards are conspicuously absent. My hon. Friend is really talking of something quite different. He is talking of courts-martial, which are an entirely different matter. We really must try to keep our minds clear on this subject.
It was suggested by the hon. Member for Camlachie (Mr. Stephen) and repeated by my right hon. and gallant Friend the Member for Burton (Colonel Gretton) that what I had offered was no concession at all. The hon. Member for Camlachie said that he had assumed all the time that the Prerogative would remain intact, and that there would be no possibility of a death sentence being carried out before there had been adequate opportunity of considering whether the case was one in which the Prerogative of mercy could properly be exercised. On that, all I can say is that I have discussed this Bill with a number of hon. Members, and I have very clearly in my mind the conviction that many of them were not at all satisfied that the words, which formed the subject of the Amendment proposed by the hon. Member for the Combined English Universities (Mr. E. Harvey), might not be held to have the effect of ousting the Prerogative which, after all, does involve something in the nature of a review. The first concession that I offered was designed to make it perfectly clear that that would not happen.
Let me come to the other point, the execution of the death sentence. I wonder whether hon. Members realise that under the ordinary law of this country, as it stands, there is no provision, nothing in the Statute law of the country designed to ensure that a death sentence shall not be carried out before there has been the opportunity for the Home Secretary to give consideration to the question of the exercise of the Prerogative. That is the fact. There is no provision whatever in the Statute law. It is a matter entirely provided for by rules made by the Executive, not, I think, under the control of Parliament. Surely it is rather unfair to say that it represents no concession at all to put into this Bill what many hon. Members have been asking for, a definite provision to do what I have said we always intended to do, namely, to secure that there shall be adequate time for consideration before a death sentence can be carried out. I claim with confidence that that proposal does represent a very definite safeguard introduced in the way it has been asked for by hon. Members—by an express provision in the Bill itself.
The hon. Member for Ebbw Vale (Mr. A. Bevan) said he could not quite see how it would be possible for the Home Secretary to give adequate time to the consideration of matters that might come before him in connection with the exercise of the Prerogative. Let me make it clear that in the case of a capital sentence the exercise of the Prerogative is not dependent upon any application or appeal from anybody, it is automatic in every case, and whatever you do with this Bill, you will not relieve the Home Secretary of that responsibility. In considering the exercise of the Prerogative he has to take into account many matters, and often they are the most important, the most relevant and sometimes the most difficult matters, which it would be entirely outside the competence of any court to take into consideration, matters that have nothing to do with the guilt or innocence in law of the convicted person and are essentially not matters for a judicial authority. The Home Secretary, or rather the Secretary of State, has that responsibility upon him. We may hope that if these courts have to be set up, the number of capital sentences resulting may not be many—we hope so, we cannot be sure—but whether they be few or many it will be essential that the Secretary of State should put himself in a position to discharge adequately his responsibility in connection with the exercise of the Prerogative of mercy. He can summon to his aid all sorts of expert advice, and if it became absolutely necessary, his powers could be shared, and are in fact sometimes shared, with other Secretaries of State. That is a very relevant consideration.
The hon. Member for Camlachie suggested that the fact that we contemplate having to make Regulations, under which the death penalty could be imposed for offences which do not involve the death penalty under the ordinary law, was responsible for the chief trouble, and that if only we could make up our minds to do without those special provisions there would be no difficulty. But I would point out that among the cases which will come before these special tribunals, and they may be the most important cases, will be cases of murder. In those cases there is the death penalty and no other penalty. There can, I suggest, be no other penalty. So, we cannot escape from our difficulties in that way. Let me say a word about the suggestion for setting up some form of tribunal of a judicial character to undertake the review of these cases. I have said before that it would really be inconsistent with the purpose of this Bill, and would defeat the purpose of the Bill, if the simple procedure which we contemplate were to be complicated by providing a system of courts of review or courts of appeal or whatever you may like to call them. It seems to me that that would be a very difficult and a very unsatisfactory halfway house between these courts which are to be set up with the full powers of the High Court, and the kind of administrative review in connection with the exercise of the Prerogative, which I have said, must be available anyhow. It does not seem to me, from such experience as I have had, that it can be satisfactory to ask judges to come together to exercise functions otherwise than in accordance with the forms and processes to which they are accustomed.
The whole point of the suggestion was that there should be a system of judicial review, with the emphasis on the word "judicial." There is nothing to prevent the Home Secretary, in the exercise of his responsibility, from associating with himself persons learned in the law and persons otherwise competent to advise him by having a machinery by which he could refer difficult cases to persons who would be sitting, frankly, not as judges. If you ask people to discharge a judicial function, it is essential that you should enable them to do so in accordance with the normal processes and traditions of the judicial office. I have no hesitation in saying that it would be quite unsatisfactory from the point of view of the purpose of this Bill, to adopt that procedure.
The right hon. Gentleman has made only one point in the whole of his speech. We have made a suggestion which goes 75 per cent. of the way to meet him, but he does not give any argument against it. All he says is that he considers it unsatisfactory. These courts themselves are half-way houses. They are mere excrescences on the judicial body. The right hon. Gentleman says that the tribunal which I am suggesting would be a half-way house. We are endeavouring to meet him, and there is no reason why there should not be a legal tribunal to review these cases. He has not given us a single reason. All he has said is that you cannot have a tribunal of judges, unless you have the normal processes of the law, but you do not have the normal processes the law in these special courts.
No, you do not. The whole system has been mutilated by these special courts. Why does the right hon. Gentleman not try to meet the Committee in this matter? He has not made out a case. He knows it is just nonsense to say that he can review these cases himself. Why does he not agree to attach to himself, in the discharge of his functions a permanent legal tribunal—permanent while this emergency is on—in the review of these cases?
I do not want to prolong the discussion, and I appreciate the contribution which the hon. Gentleman has made. I do not think that I should have any objection, in principle, to associating with myself—I had better say with the Home Secretary—in the discharge of these functions, and in the exercise of the Prerogative, a body of persons legally qualified and highly expert to advise, so far as legal considerations may be involved. The hon. Gentleman said that I had given no argument, but I would remind him that the considerations which have to be weighed are not by any means all legal. So far as there are legal considerations we might make provision by Regulation for a body which would give advice and assistance to the Home Secretary, but I should like to think out that suggestion. I have no objection whatever in principle. I tell the Committee straight away that I certainly have had it in mind that, if the volume of work falling on the Home Secretary was such that he could not adequately deal with this matter through the ordinary machinery available to him, some such expedient as has been suggested might have to be adopted. I have no objection.
I have listened to the Home Secretary and I say, with great respect and humility, that he has not convinced me. I think I shall be voicing the opinion of a good many hon. Members in saying that legislation by Regulation instead of by embodiment in a Bill, is something to which we all ought to take some objection. I am diametrically opposed to the arguments of the hon. Member who spoke about the British characteristic. Surely that characteristic is that justice shall be meted out in a just way. One man may have to hold power to impose sentence of life or death, probably in a time of very great emotion. It is our duty, as Members of Parliament, to do what we are doing now, to discuss matters in a calm and collected fashion. The Home Secretary has endeavoured, to the best of his ability, to persuade Members of this Committee to his point of view. With great respect, I say that he has not succeeded, and I want to add my voice to those of hon. Members who have already supported the idea of a review, where the death sentence has been imposed. Whether that upsets the Bill or not, I cannot imagine anything of greater importance. A man can be detained. What is the hurry, if a man has committed an offence which, in a moment of crisis, seems to necessitate shooting him or hanging him forthwith? My own view is that this Committee ought to demand an answer. I hope that we shall defeat the Government, unless the Home Secretary is prepared to make this concession in the Bill now, and not by subsequent Regulation, that there shall be a review, should a sentence of death be passed by these courts.
Having listened with the greatest interest to the different views expressed on this point, I express my own, which is known to certain Members of the Committee. Hon. Members have expressed a preference for another procedure rather than the one put forward in the Bill. In the last speech of the Home Secretary was a proposal which, if examined, will be found to go a great way to meet the fears exprssed in many quarters of the Committee. The hon. Member for Ebbw Vale (Mr. A. Bevan) said that he was not convinced by the argument of necessity which had been put forward. I disagree strongly with his view as to the absence of necessity of deterrent and speedy action. In the circumstances in which these courts are suggested, deterrent and speedy action is essential if they are to work at all. Therefore, we have to find a procedure which will not militate against those two requisites. As I understand the Home Secretary, he proposes that, in the case of a death penalty for a serious offence, no action shall be taken to carry out the sentence until he has referred the matter to, and had a report from, an advisory committee, which will consist of legal experts, and that that advisory committee should be able to review not only the sentences, but the proceedings of the court, and questions of whether the conviction is right or not. If my right hon. Friend is going as far as that, I cannot see the distinction between his proposal and the suggestion of the hon. Member for Ebbw Vale that there should be a court of review.
If what my hon. and gallant Friend has now stated as the Home Secretary's argument be, in fact, his argument, and if it means that the body which the right hon. Gentleman might set up would be a confirming body, it would go a long way towards meeting the point.
I hope that my right hon. Friend will not think that we are catechising him, but perhaps he will indicate whether I am right in describing the suggested body as a committee, to which he would refer these questions and whose report he would receive before action were taken.
What I said was that I was perfectly prepared to consider making provision in the Regulations for some appropriate and convenient method of reviewing, in connection with the exercise of the Prerogative, matters arising out of the working of the special machinery provided in the Bill. I have not had an opportunity of considering how best it could be arranged, and I do not want to be tied too closely, but I am perfectly prepared to go into that matter in connection with the Regulations. I told the Committee that I had had in mind that, if the pressure of work became such as to necessitate the setting up of a special machine, that would be the kind of machinery I would select. It is not a matter to be provided for in the Bill because, according to my suggestion, it would be bound up with the exercise of the Prerogative. You cannot put into the Bill matters of that kind. I think that would be entirely wrong constitutionally. My right hon. and learned Friend the Attorney-General may speak in a moment about the establishment of a body of a judicial nature.
I do not think it has quite the same consequences. In point of fact, the provisions which are made to ensure that the death sentence shall not be carried out, under the ordinary rules, before review has taken place, are made by rules.
I confess I thought that my right hon. Friend had gone a little further, and that he was not limiting his suggestion to the one matter of Prerogative cases. I thought he proposed to establish some machinery which would examine the more serious cases which came up from the court. I see that the hon. Member for Ebbw Vale is in his place again, and he might be disposed to agree with me, that, had my right hon. Friend gone as far as having a legally manned committee to which he would refer serious cases, and without whose report he would not act, that would have meant very much the same thing as the hon. Gentleman's own proposal that there should be an ad hoc reviewing body. I was going to point out—and as I understood the hon. Member for Ebbw Vale, he was very conscious of the fact—that you would not have a court of appeal acting in the ordinary way, hearing counsel on each side and occupying a considerable time. What I understood was that you would have a reviewing authority which would review the report of the trial.
I do not want the hon. and learned Gentleman to reduce my proposals to too meagre proportions. What I had in mind was an ad hoc legal tribunal which would have power also, if it wished, to send for witnesses and examine the accused person, but not the ordinary processes of a trial in which there would be a large number of legal representatives on both sides.
The point envisaged by the hon. Gentleman might arise in a certain number of cases, but in the ordinary case they would have the proceedings before the tribunal. It would be perfectly clear and they would be perfectly able to act. With regard to that proposal and the general understanding of my right hon. Friend's proposal, there is very little between us indeed. I think that those of us who agree with my right hon. Friend, that it is necessary that these courts should act speedily, that the trials should be carried out quickly, and that the sentences should be a deterrent to the type of crime that may be apprehended in districts where confusion reigns, would be prepared very readily to accept some proposal of that kind—that my right hon. Friend should have a committee to which he could refer the cases and on whose authority he could act. It seems to me that that sort of compromise would satisfy the majority of hon. Members in this Committee.
The speech of the hon. and gallant Gentleman has brought us very much nearer to a point of agreement. I would like to put this to the Home Secretary: in the case of a capital sentence he would, of course, have to recommend the exercise of the Prerogative, but would he be willing, before doing so, to submit the case to a body which would consist of judicial personages? That body would then have the right, if they thought necessary and if the circumstances permitted, of calling the convicted person or taking such other steps as were necessary. On the other hand, in cases where it was clear that they did not think that was necessary they would act upon the depositions of the trial and give their report according to their own responsibility, having taken such evidence as they thought necessary? That would be left to them to decide. That is not very far from what the right hon. Gentleman himself proposed and if he would agree to that I think the matter might be adjusted.
I do not think the suggestion made by my hon. Friend the Member for Ebbw Vale (Mr. Bevan) has been properly understood. I disagree with the hon. and gallant Member opposite when he says that the two proposals now at issue before the Committee are very much the same. It seems to me that they are divided in principle. The Home Secretary's suggestion is connected only with the Royal Prerogative—that is to say, the advisers will have power to advise the Home Secretary, but the Home Secretary will not be bound by any advice that they may give. Therefore, the position would be very much as it is now. The right hon. Gentleman has already told us that when the Home Secretary is called upon to give advice in respect of a sentence, he always has to consult and does consult experts of all kinds in order that he may come to the right decision. The hon. and gallant Gentleman has gone no further than that. What we are proposing is that there should be an ad hoc committee of some kind, which would have the power of taking into account all the evidence submitted in the case in which the penal decision has been given, and power to revise it, independently of the Home Secretary and of any question of the Royal Prerogative. It seems to me that the right hon. Gentleman is very slow in his efforts to meet the objections that have been raised. Unless he wants to face a Division which may, possibly, result in the detriment to his view, I hope he will reconsider the matter. He has made three speeches and it will not make much difference, perhaps, if he makes yet another, before we close the issue. What we want is a secondary body, independent of the Home Secretary and of the Royal Prerogative to say whether or not they confirm the decision which has been given.
May I make a suggestion? It is agreed, I think, on both sides of the Committee that the courts have to act with speed and that an appeal in the ordinary sense is impossible. It is also perfectly clear that the majority of hon. Members present demand, if I may use that word, that there shall be some review. I venture to suggest that some sort of review will have to be put into this Bill or else the Bill will not go very far. It has been suggested by the Home Secretary—and I must confess that I thought his suggestion went much further than it was afterwards found to go—that he should consult an advisory body, but that is what he does at present. What the Committee desire is something quite apart from the ordinary body which he consults—something independent. I understood that there would be a difficulty in a judge of the High Court having his findings and his sentences reviewed by anybody. The question seems to be one of amour propre, but that seems to be the point. Would the Home Secretary consider that an advisory tribunal should be mentioned in the Bill and not in the Regulations? That is important. Whatever provision is made, it should be in the Bill and not in the Regulations. When it is in the Bill we know what we are doing, but if it is to be in the Regulations we do not know what will happen. I suggest that it should be in the Bill and that any decision should be reviewed by the Lord Chief Justice. There is a high legal authority who would act with impartiality, who is part of the existing legal machinery and whose services might be prayed in aid to get us out of this difficulty.
We desire to have, not a full-blown appeal but a review, not merely on sentence but also on merits, by judicial persons independent of the Executive, and for the life of me I cannot understand why the Home Secretary cannot grant that. I cannot see what he would lose, in substance, by granting it. I am sure he desires unity in the Committee and the Government desires speed, but I do not think the Home Secretary or the Attorney-General will get either of those, unless they show that they understand the very grave fears which sincere and honest citizens of this country and Members of this Committee feel about this Bill. We are not afraid of somebody being imprisoned who ought not to have been imprisoned. That is a small fear. We are not even afraid of somebody being shot or hanged who ought not to have been shot or hanged. In these days a lot of people are being hanged and shot who ought not to be, and one or two more would not be terribly important. There is a much graver fear. We gravely fear that if the Executive is given excessive powers over the liberties of the subject, the liberties of the particular subject may be detrimentally affected and the very thing for which we are fighting may be destroyed. We have seen that happen in several countries in the last few months, precisely because the Executives had taken to themselves too much power over the liberty of the subject. That is the grave fear which confronts us, and when we find that the Home Secretary is rejecting appeals from all parts of this Committee, on grounds which he does not state, then our fears are not allayed but increased.
I would like to point out—almost every hon. Member is aware of it, but I do not think the Home Secretary is—that throughout this Debate the Home Secretary has not told us what he would lose in substance by granting the overwhelming desire of this Committee. He has told us that it is inconsistent with the spirit of the Bill. He just says so, but he brings no argument. What the Home Secretary requires is provision for arrest, early conviction and early sentence. In the case of death, the Home Secretary does not say that he gains anything by early execution. He does not want it. He merely wants arrest, speedy trial and early sentence. He has not said anything to show this Committee that he will lose any one of those three things if he accedes to the demand which has been expressed upon all sides. When he says, "I will not yield" without giving any reason, that, too, must increase the very sincere fears which a great many of us feel. Unless the Home Secretary or the Attorney-General can tell us what the Government would lose in substance, this Committee should vote against them and try to impress its will on the Executive.
I was not here yesterday and therefore I did not hear the discussion on the main part of the Bill. I confess that my mind has fluctuated throughout the whole of the Debate which I have heard this afternoon, and I wish to speak only because I, personally, have had as much experience of court-martial work as any hon. Member on this Committee, excepting the hon. and gallant Member for West Derby (Major Fyfe). My great difficulty is this. First I am not in a position yet to know by whom the death sentence is to be passed. I know many individuals, if I may say so with respect—High Court judges and others—to whom I would be prepared to entrust my personal safety, but I say without hesitation that I would hesitate very much before I committed myself and my fate to many lay magistrates. It is for that reason mainly that I feel that there should be a confirming authority.
The right hon. Gentleman very properly drew a distinction between martial law and courts-martial. In field courts-martial there must be three members present, and in a district court-martial, if I remember rightly, five members, with at least three voting in favour, for the death penalty to be passed. In that case, there is a confirming authority before the sentence can be carried out. The right hon. Gentleman now says, most properly, that he is prepared to undertake the duties of the confirming authority. The issue, therefore, is narrowed down to this: What is the best way for the confirming authority to operate? Now that the right hon. Gentleman has said that persons tried by these extraordinary tribunals—I use the adjective in no offensive sense—are to have the sentences confirmed by a responsible authority, such as the Home Secretary, my doubts have vanished, and I intend to support the right hon. Gentleman.
It is important to emphasise again what my right hon. Friend emphasised, that the whole reason for this Bill is to prevent conditions arising in which what is called martial law would be the only method of dealing with offenders. Once that is realised, I think every hon. Member will appreciate that the need for this machinery to be speedy is very real. Nearly everybody, though perhaps not quite everybody—I do not know about the hon. Member for Ebbw Vale (Mr. Bevan)—agrees with the feeling expressed by the hon. and gallant Member for Epsom (Sir A. Southby) and the hon. and gallant Member for West Derby (Major Fyfe) that a court of appeal, such as we have had in this country since 1912, in the ordinary legal sense, is out of the question.
Yes, I think that is the general sense of the Committee. The difference, therefore, is a comparatively small, though important, one. The suggestion is that there should be some body, an individual or two judges, who should be not a court of criminal appeal, not an executive or administrative body, but should, if I understand correctly, control the Home Secretary. [HON. MEMBERS: "No—review the case."] They would not be a court of criminal appeal. It is recognised that we cannot have an ordinary court of appeal. At the moment, I find it difficult to see on what principle this body would be acting.
Every Crown Colony has such a system of review. It is not novel; it is a very well-tried system. I do not like it as well as appeal, but it has decided the fate of hundreds of our black fellow subjects.
The hon. and learned Gentleman has the advantage of me. It is not, however, a process with which our judges are familiar. [HON. MEMBERS: "Nor is this."] They will be administering the ordinary law. All our judges are used to deciding questions of fact, without a jury, in civil cases.
As I listened to the right hon. Gentleman the Member for Keighley (Mr. Lees-Smith), I thought that he was merely asking for what my right hon. Friend had spoken about. My right hon. Friend said that, in coming to a decision when giving advice to the Crown on the exercise of the Prerogative of mercy, he would refer capital cases and other serious cases to a committee—if that is the right word—of two or three judicial, highly-qualified legal persons to report to him before he came to the decision.
I think my right hon. Friend was dealing with the suggestion that there should be placed in the Bill some fetter upon the way in which the Prerogative of the Crown might be exercised. Members, I think, all recognise, although there are some things that they may dislike in the Bill, that this is a genuine attempt to fill a gap which needs to be filled. We never know, from day to day, when conditions may come upon us in which it is vital that the machinery which this Bill provides shall be put into operation. I want to make an appeal to the Committee. I appreciate the desire for some sort of judicial body which would be not merely advisory to my right hon. Friend but would have some function which I think it is rather difficult to determine. [HON. MEMBERS: "Why?"] Because a review by a judge is something unknown to the law of this country. [HON. MEMBERS: "So is this Bill."] What the judges will have to do will be done, not under the Bill, but under the Regulations. [An HON. MEMBER: "The Regulations will be under the Bill."] The matter may be one that can be dealt with by Regulation, but the insertion of such words as hon. Gentlemen have in mind would compel by Statute something which is unknown at present to our law.
My right hon. Friend has given an undertaking—which I agree fails to satisfy many Members on both sides of the Committee—as to what he is prepared to do. We are, certainly, prepared to consider whether, within the limits of the necessary expeditious and practical form, there should be some body which would review. My right hon. Friend is prepared to go further, so far as the Bill is concerned. We very much want the Bill to go through to-night. My right hon. Friend will be prepared to consider whether a form of words which would meet the point could be inserted in the Bill.
The hon. and learned Gentleman thinks that I have not; he is entitled to his opinion. But I am sure that my hon. and learned Friends here will agree that if you are proposing to impose by Statute on his Majesty's judges a duty unknown previously to our law, it would normally, of course, be a matter for consultation with them. [HON. MEMBERS: "Oh!"] Yes, certainly—before we settled their duties. Therefore, I cannot be absolute in regard to the undertaking that the hon. Gentleman asked for. [HON. MEMBERS: "Divide."] That is as far as I can go. My right hon. Friend's undertaking stands. The undertaking is that we will consider, if necessary, with right hon. and hon. Members, whether it is possible to insert, in another place, words in the Bill which will provide for the kind of reviewing body which has been indicated by many hon. Members in all parts of the Committee.
Many of us feel very strongly about this question. My right hon. and learned Friend says that we may have to meet an immediate situation of grave anxiety, and upon that the whole Bill is based. Can he tell the Committee whether, if there is a situation of abnormality, there can be anything better to preserve the liberty and rights of the people than a body composed of His Majesty's judges? If the court itself can function, is there any reason at all why some sort of appeal cannot function immediately? If the court can sit, then the Court of Appeal should be able to sit. If anybody is to be entrusted with the power of preserving the liberty of the people, that power should be given to His Majesty's judges as a court of appeal.
The Committee appears to have travelled a very considerable way onwards, and has made great efforts to do so. The undertaking now is, as I understand it, that before the Bill goes to another place there shall be a discussion as to the possibility of inserting in the Bill language to give effect to the desire of the Committee that there shall be set up a reviewing judicial body for the cases set out in the Bill. There can be no doubt of the possibility of it, and we gather that the right hon. Gentleman would never try to conceal himself behind these words. In these circumstances I see no reason at all why the Committee should not agree.
There is not any misunderstanding. The hon. Gentleman's body is a body which would deal with death sentences, which, broadly speaking, was the limit of the earlier part of our discussion.
On the Amendment which says that certain words are to be left out, I would suggest to my right hon. and learned Friend that, in view of his undertaking, it seems obvious to an hon. and unlearned Member of this House that he must accept the Amendment, because now the Government are going to take steps to have some form of review. Therefore, it is obvious, if they are to carry that out, that they can accept the words of the Amendment, as it is clear that there will be some such review as that which is set out.
The proposal that was made was not intended to cover all cases. In the early part of the Debate anxiety arose in the mind of everybody with regard to death penalty cases. If my right hon. Friend's Amendment was accepted—review by a court—it would be merely an enabling power, and there is nothing inconsistent in the Bill as it stands, amended by my right hon. Friend with the body proposed, and I think it would be better if his Amendment were carried. The way would then be open for the whole thing.
I am sorry to press this matter. Surely if the words are left in the Bill as it stands, it will say:
The proceedings of such courts being subject to no review.
The undertaking is that some form of review should be undertaken. Why not take out the words?
We can discuss how we may define it. I do not take it that this reviewing body was intended to operate necessarily over the whole field. I have suggested to the Committee that, if these words become unnecessary or inapt as a result of the alteration made, they can go, but that they do not necessarily have to go. As I understand the situation, there might be minor matters which would not come under the proposal for the reviewing body. I do not know that it very much matters, because obviously the wording will have to be considered in the light of the Amendment to be proposed. I was asked by my hon. and gallant Friend whether it was not obvious, in view of the suggestion that has been made, that these words will have to go.
Why is it that the Government are making so much heavy weather for themselves? It is simple to accept the Amendment. If in the light of any further Amendments that the Government wish to introduce these words may have to be reinserted, they can do it. Why create all this suspicion? The feeling of the Committee is obvious to everybody except apparently—and I am sorry to say this—to the two right hon. Gentlemen on the Front Bench. There is very strong feeling about this and why make heavy weather for yourselves? Why not accept the Amendment, and, if it is inappropriate afterwards, you can reinsert the words?
My right hon. Friend is prepared to accept this Amendment. I think I have some reason for the attitude I adopted, because it may have been that the acceptance of this Amendment might have been taken as an indication, in the opinion of the Government and this Committee, that the review ought to operate in every case. As long as it is clear that that was not the demand that was made, and that there is nothing inconsistent with our considering that question, then I am prepared to accept the Amendment.
May I ask you, Colonel Clifton Brown, what effect the deletion of these words makes on my Amendment, in page 2, line 20, at the end, to insert:
Provided that no death sentence pronounced by any court established under this Act shall become operative unless and until the same shall be confirmed by a judge of His Majesty's Supreme Court of Judicature after a full review of the proceedings held in the presence of the accused who shall be entitled to give and to call evidence in his own behalf."?
On a point of Order. I presume that the three Amendments in my name—in page 2, line 20, at the end, to insert:
Provided that the Regulations shall provide that the presidents of such courts are responsible to the Commons House of Parliament.
Provided that the Regulations shall provide that the salaries of the presidents of such courts shall be paid out of moneys provided by Parliament.
Provided that in view of the special nature of these courts and so long as they remain in operation it shall be competent for Parliament to discuss their working and the sentences passed by them"—
are not going to be called? As they seek to raise the point of this House keeping some control over the process of these courts, would it be in order to raise that point on the Motion "That the Clause stand part" in the event of these Amendments not being called?
It is difficult to say in advance what will be in order and what will not on the Motion "That the Clause stand part." Hon. Members must always try to decide for themselves. They will be pulled up if they are out of order. The second Amendment of the hon. and gallant Member is out of order, as it raises the question of money.
I beg to move, in page 2, line 20, at the end, to insert:
Provided that no regulation may make provision for the holding of any trial in secret when such trial could not have been held in secret under the rules and practices of the regular civil courts.
I hope that we may be able to deal with this Amendment in the same way. There appear to be only two possibilities. There is a whole series of rules, practices and customs known to our judges and to barristers; and others under which, in certain circumstances, a trial may be held in secret. One gathers that these special courts are to be presided over by judges or by learned gentlemen
of the calibre of High Court judges to whom therefore the ordinary rules governing the holding of trials in secret will be well known, I have complete confidence in those learned gentlemen who administer and interpret those rules correctly.
There are, therefore, only two possibilities; either the Government have in mind that in certain circumstances they will desire the special courts to sit in secret in circumstances in which they would not now sit in secret, or they would not. If the Government have in their mind that they will use these Regulations in order to enable these courts to sit in secret and hear trials for which in the ordinary way there would be no call for secrecy, then I think we ought to get the Government to say that that is their intention, and the Committee should defeat it, because I am sure the Committee would not desire to give the Government in this Bill anything which would enable them to hold trials in secret when they could not do so under the ordinary rules. I hope the Home Secretary or the Attorney-General will be able to tell us that the Government are not minded to use the powers in this Bill in order to extend the powers in the special courts to sit in secret. If they can tell us that, then there is only one thing left, namely, whether we should be content with an assurance from that Box or whether the provision should be in the Bill. I submit that it would be an advantage to have this in the Bill. I have explained on earlier Amendments what are the fears of a number of Members of this House and citizens outside as to how this Bill may be used by this or any other Executive at a moment of crisis, and I think it would go some way to removing those fears if it appeared in the Bill that there was no power to extend sittings in secret.
Subject to the rare cases in which, under existing law, trials are held in secret, so far from there being any desire that these courts should sit in secret, there is the desire that all proceedings should have the fullest possible publicity. That is one of the objects of setting up these courts, and the only question is whether we can or cannot insert a proviso. I think it would be better, for the following reasons, if we did not: When the original Defence Act was before the House we took the view that the holding of trials in public was so fundamentally a matter of the British Constitution that it could not be interfered with by Regulations made in general words, and for that reason the hon. Baronet will find, if he looks at Section 6 of the Act of 1939, that in so far as there was, as there was, some extension of the power to hear cases in camera, it was thought right to make it in that Act and not leave it to be dealt with by Regulation. That provision of the original Emergency Defence Act which gives a court power to hear cases in camera if it is expedient in the interest of public safety or the Defence of the Realm, will, of course, apply to these courts as to other courts, as it will, also, to the Common Law power to hear in camera. To insert this proviso would suggest that we could extend the right to hear cases in camera by Regulation, and that is exactly what we do not think we can do. The insertion of the proviso would, by implication, suggest it could be done by Regulation, and I therefore hope the hon. Baronet will not press the Amendment.
I beg to move, in page 2, line 23, to leave out from the first "and," to "are," in line 25.
This Amendment is consequential on the first Amendment passed yesterday.
I beg to move, in page 2, line 25, at the end, to add:
(3) Courts under this Act not being courts-martial shall consist of not less than a president and two other persons learned in the law and legal procedure.
I am moving only the first part of the Amendment which stands in my name, and not the second part. The Committee will see that the first part deals with the constitution of these new courts and who would be the judges. The second part of the Amendment provides for revising and confirming authority, but in view of the long discussion we have just had, I do not think it is necessary to move the second part of the Amendment. Therefore, I will confine myself to the constitution of the courts and would only say that the second part of the Amend-
ment appears to provide what the Committee, after long Debate, decided that it wanted. In connection with the part of my Amendment which I am moving I wish to say that no precise information has been given to us yet by the Government as to who these persons are intended to be and who will act as judges of these new courts. There was an alarming passage in the first Debate on the Second Reading of this Bill which led some of us to believe that it was intended that any suitable barrister or other person learned in the law, but not necessarily trained in a judicial capacity, might act as president, with two legal gentlemen, justices of the peace, or, maybe, local solicitors, appointed to act with the president.
I think it has been said more than once in the course of this Debate that it is intended that the president shall be the judge to decide, that the other two gentlemen, sitting with him, shall be in the nature and character of assessors, and that beyond an expression of their views and discussion of the character of the case with the president they will have no more to do with the decision. That has alarmed some of us, because it seems quite clear that the president of these courts should be a highly qualified person. Because of the far-reaching, wide and drastic nature of the Bill, it would be very alarming if one man, who might come to the point of imposing a sentence of death, and who might be learned in the law and legal procedure, but was by no means learned in judicial capacity, should have these enormous powers. I therefore move this Amendment in order to obtain something more precise than anything which has occurred hitherto and to show who these persons are to be. The Government may be able to improve on my words, but I think it is essential that something should be put into the Bill to ensure that the man appointed as president, and those appointed as his associates, are persons of the highest qualifications.
As regards the first part, then, I wish to make one or two observations on the subject of the personnel of these courts. There was a suggestion that these civil courts should consist of a president with legal knowledge, assisted, possibly, by two justices of the peace. I dislike that course intensely. I make no charge against justices of the peace—no doubt many of them are admirable—but there are some in certain areas who are obviously biased from the legal standpoint, and I would not like to place them in the position of having to adjudicate on matters which come before them, certainly on matters of this kind. If it were intended that justices of the peace in particular areas should not adjudicate on the cases coming before them from their particular districts, but should go elsewhere, I should not mind the proposal, but if they are to adjudicate in their own areas, it is a matter which ought to be carefully considered. However, my submission to the right hon. Gentleman is that he should accept the principle of this Amendment if he cannot accept the words. If the process of trial is to be speedy, it does seem to me that decisions ought not to be left in the hands of one man, however capable. He ought to be assisted by other persons who have legal knowledge and who are able to form an opinion on the evidence presented. I hope the right hon. Gentleman will appoint, not one person, but three persons, and in that way give rather more confidence to those concerned with this matter than otherwise would be the case. We had an opportunity of presenting our views to the right hon. Gentleman on a previous occasion, and he is well acquainted with our opinions, but I make these observations in order to reinforce them.
I agree with the hon. Gentleman. I am not at all happy about lay justices taking their part in the administration of this court. I go further and ask whether it would not be possible to have what I believe there is at the Central Criminal Court, a judges list, and only in cases where the death penalty is to be inflicted one of His Majesty's judges shall be asked to go at once. No greater responsibility could be imposed on any man than to try a life or death issue. There is another point on which I should like to put forward a suggestion. As I understand it, the essence of the Bill is to cut out all unnecessary procedure and get on with it as quickly and as efficiently as you can. You have already in this country an organisation which can be brought into operation at a moment's notice. It came out in Debate on one occasion that there is only one quarter sessions in the country where there is not a trained lawyer as chairman. You have men like my hon. and learned Friend the Member for West Derby (Major Maxwell Fyfe), who is a recorder, and there is the hon. and learned Member for East Leicester (Mr. Lyons). There are men who are perfectly prepared to go down at a moment's notice to the areas in which they have judicial functions and, much as they dislike the work, do it simply as part of their duty. I cannot help thinking that, provided you get safeguards, and you have not one man alone but three people learned in the law, one of whom, the president, has had real judicial experience in presiding over criminal courts, that will prove much more satisfactory than what is at present suggested, namely, only one trained lawyer who may have been at the bar for a couple of years, has never practised and has had no judicial experience at all. As far as the death penalty is concerned, it is a matter which might well be left to His Majesty's judges.
I strongly support the Mover of the Amendment, especially as I gather that these courts are to consist of three people, one of whom is going to be a man learned in the law and the other two will possibly be taken from a panel and will be something in the nature of assessors and may be local justices of the peace. I can understand having one judge of the High Court trying a case. I can understand our laying it down that there shall be three judges, especially if the case is a criminal one of a serious kind. What I cannot for the life of me understand is why the Home Secretary should think it wise to put into the Regulations that you should have a High Court judge sitting in one of these courts as president, and two others—I use the word in its proper sense and not as a term of reproach—local nonentities sitting with him. It is obvious that those two will be overawed by the judge, and the only possible help that they could be to him—possibly this is the reason why they are being added—is that they would be able to give him, to use a vulgarism, the "low down" on the individual who comes before the court. There is no other reason for their being there. They are not learned in the law, and, as far as legal procedure is concerned they will be completely useless, and it seems to me they can only be there to give him local colour about the individual who may come before the court. There will be a genuine fear in the localities where these courts are set up that these men are actually there to tell the judge what is known locally about the tendencies and the political views of those who may come before the court. If we must have three, let them be learned in the law and not be assessors, local men who can give no help whatever and can only give the "low down" on the individual who is up for trial.
I hope my right hon. and gallant Friend will not press the Amendment. It would be better to leave it at large. There are two different conceptions, and they both ought to remain open for consideration. The conception behind the Amendment is in effect one of three judicial or legal personages, the president, no doubt one of the greatest status, possibly a High Court judge, sitting with recorders and so on—three judges to deal with capital cases without a jury. That is one conception, and it may he the one finally thought to be the best. It involves a greater demand on such judicial legal talent as there is. The other conception is a different one. There is not the slightest idea in anyone's mind that the lay members of the court, whether justices or not, should give the judge the "low down" on the individual. [Interruption.] I was putting the hon. Member's point in his own words. In these courts there will be no juries. The hon. Member referred to these men as unlearned in the law and as nonentities. I wonder whether he would refer to 12 jurymen as 12 nonentities?
That is a principle which I will remember. In our criminal system as it is, the opinion of laymen unlearned in the law is the opinion which decides the most serious issue, namely, guilt or non-guilt. I have had an opportunity of discussing these special courts with one or two of His Majesty's judges who may have to be called upon to preside over them, anyhow judges who are familiar with the problems which this procedure would present. One or two of them were certainly attracted by the idea of being assisted, not so much on the legal side, but by two responsible laymen, who would not, of course, perform the functions of a jury but who would, as it were, express the point of view and look at matters in the way that a jury would. I will certainly consider my right hon. and gallant Friend's suggestion, but I would ask him not to press the Amendment, because there really are two sides to this matter, and it would be much better if it was left open. My right hon. Friend is, of course, keeping in touch with those interested and will also take an opportunity of discussing the matter with His Majesty's judges who may be called upon to preside.
I do not look upon justices as being nonentities. I understand that it is quite possible that cases may have to be heard in camera. The composition of the court then would resolve itself into those who would be entitled to be present. Therefore, not having anyone from the locality present, it is probable that the judicial body could control the whole of the proceedings, and it would convey a wrong impression to people outside. I daresay local opinion might at some time create a difficulty in regard to a particular case, but surely it would be quite possible to get people to sit with the judge, not having any power over him, because I do not think, from my knowledge of the judges who come to the Liverpool Assizes, anyone, whether a nonentity or not, would be able to influence any judge that I have ever seen in an English court of justice. These two people, whether learned in the law or not, would have no influence and no power over the judge, and, therefore, if they are nonentities in the form of justices of the peace, it will not make any difference, but it will have a great deal to do with the question of the constitution of the court if the legal mind of a judge is dealing with the case. The Amendment ought to be seriously considered before it is accepted. There are good men—they may not be in the House of Commons—who could be got who would not attempt to influence the judge on the bench.
Will my right hon. and learned Friend tell us whether, in cases other than death sentences, the second and third members of the court, who, I assume, are really something in the nature of assessors, will have any say with regard to the sentence, or is that a matter to be left entirely to the presiding judge? Would the judge be justified in consulting with the assessors as to whether he should pass sentence of 10 years' penal servitude or two years' hard labour, or is the function of the assessors simply to give general advice on the details of the case?
I think we again find ourselves in difficulty because of the fact that we are really discussing the Bill in the dark. Things are not in the Bill; they are to be in the Regulations, or not, as the case may be. We do not know really what is to be the constitution of these courts. We are told that they are to be composed of prominent people learned in the law, and that if the supply goes round, they are to be High Court judges. I have the greatest respect for the capability and efficiency of High Court judges, but I hope the Attorney-General will stick to the appointment of two laymen. I believe these laymen might be of the greatest possible assistance to the judge, and, much more than that, they might give great confidence and comfort to the man in the dock. Hon. Members have been speaking from the point of view of the men on the bench; I am trying to put the point of view of the man in the dock, who appears before a new and quite unknown court. I do not know how magistrates living in the Colne Valley will like the suggestion of the hon. Member for Colne Valley (Mr. Glenvil Hall) that they are nonentities. My experience of magistrates of all shades of political opinion is that they do their work extremely well. I believe that the confidence of the public in these courts will be greatly strengthned if they see sitting on the bench with the judge—whether one or two is a matter for further discussion—two ordinary men from the street, as it were, and I hope that when the Home Secretary has discussed this matter further, he will maintain the original provision that two lay magistrates from the panel of the county or area shall sit with the judge, because it is most important that their services should be retained.
I endorse very largely the observations of the hon. and gallant Member for Epsom (Sir A. Southby) about the constitution of these courts. As a trade unionist I ought not to object to trade union organisation, but, candidly, there are some of us who are not as much enamoured of lawyers as they are themselves. On nearly every occasion when there is anything before the Committee, there is an urgent desire to urge the importance and extension of lawyers in all this business. I do not agree that they are necessarily the best persons to give decisions. I would prefer to see two laymen sitting with the learned judge. There must be someone to deal with the points of law, but we want a little common sense in the decisions as well. The Attorney-General referred to the fact that a jury is not necessarily trained in the law, but the juries give excellent decisions, and they give confidence to the country. I should like the right hon. and learned Gentleman to consider whether it is not possible for him to agree to have two laymen to assist the judge in coming to a decision. If he has any difficulty, apart from the lawyers who are in the Committee and who hope to be able to get higher positions in the law—and we wish them the best of luck—if he has any difficulty in getting a decent panel, I can get him a first-class panel from the Trades Union Congress.
I should like to add a word or two in regard to the proposal made by the hon. and gallant Member for Epsom (Sir A. Southby) and my hon. Friend the Member for East Woolwich (Mr. Hicks). I hope the Home Secretary and the Attorney-General will be rather careful about the appointment of the additional people to these courts. There might be real danger in having courts composed only of legal people. These people are all very well in their particular sphere, but I doubt very much whether the courts will have to deal only with legal matters. Very often they will have to deal with human nature, which is very much wider than the legal aspects of the case under consideration. My hon. Friend the Member for Colne Valley (Mr. Glenvil Hall) said that justices of the peace are nonentities. I think he made a mistake. I know justices of the peace who devote an enormous amount of time, energy and care to carrying out their work. Of course, some of them are nonentities and worthless, but under the system now in operation, the advisory committees play an active part in advising the Home Secretary or the Lord Chancellor on the appointment of magistrates, and on the whole the system works fairly well. The courts that are to be constituted by this Bill ought to have some laymen on them. There ought to be an opportunity for laymen to express an opinion on the cases that will come before these courts. I hope the Committee will not agree to the constitution of purely legal courts, because I think that would be a mistake.
I wish to put a question to my right hon. Friend the Home Secretary. Having regard to the fact that there will be two laymen or justices of the peace on these courts, will the presidents be High Court judges? If a court is to have three members, two of whom are to be laymen, I feel it is essential that the president should be a High Court judge.
The question as to who are to be the presidents of these new courts is a very important one. I do not wish to press the Amendment if the Home Secretary will give an assurance that it is intended that High Court judges shall be appointed as presidents of the courts. That has been assumed several times in the Debates yesterday and to-day, and if my right hon. Friend will confirm that it is so, I shall be prepared to ask leave to withdraw the Amendment.
I think we have said again and again that every effort will be made to secure as presidents of these courts High Court judges or equally qualified gentlemen of the highest standing. It may be that one or two gentlemen such as would be chosen to act as Commissioners of Assize in the place of a High Court judge might be thought suitable to discharge these functions. We are most anxious that the legal character and quality of these courts shall be as high as it possibly can be.
I beg to move, in page 2, line 25, at the end, to add:
(3) Courts under this Act shall be deemed to be inferior courts in relation to the High Court of Justice, and proceedings in the nature of prohibition, certiorari or mandamus shall lie to them accordingly.
It was thought very necessary that this Amendment should be moved—and I hope accepted—by reason of the very alarming speech made by the Attorney-General at an earlier stage in the Debate. I describe it as alarming for this reason. The Bill is recognised by every hon. Member in the Committee to be an unwelcome thing which would be completely undesirable in all ordinary circumstances. The justification for the Bill is that there may be at certain times and in certain parts of the country conditions so exceptional as to make it impossible to apply the ordinary law. Every hon. Member accepts the Bill on that basis. However, during the discussion of a previous Amendment, the hon. Member for Colchester (Mr. Lewis) asked the Attorney-General what there would be to prevent one of these special courts setting itself up in a place which was not authorised by an Order made under the Bill, when it becomes an Act. What is there to prevent one of these special courts, having been set up by Order in a special area to which this Measure has been made, by Regulation, to apply, setting itself up in some other district, and trying in that district offences which it had no jurisdiction to try at all?
The learned Attorney-General said that he contemplated that these courts would be courts of equal jurisdiction with the High Court. Therefore, they would not be inferior courts, and the normal machinery, which in this country prevents any court from exercising a jurisdiction which it has not got, namely, an appeal by way of prohibition to the High Court, would not apply. If that is so, even such safeguards as the Bill provides have become entirely and completely meaningless. I hope the Attorney-General may be able to remove these serious doubts which are in the minds of several hon. Members. Unless he does so, as far as I can see, once a court is set up, and once it is agreed that it is not an inferior court, and once it is agreed that its proceedings may not therefore be removed to the High Court, it may operate anywhere. If that is so, it becomes vitally necessary that there should be some means of ensuring that a court, once set up, shall confine its jurisdiction to the places and to the time in which jurisdiction has been extended to it. Unless that is the case the first part of the Clause, which defines so clearly the circumstances in which this legislation shall operate, becomes ineffective.
People often have something to say in this Committee about law and lawyers, but I do not wish to enter into a discussion about that. The Common Law of this country, amended as it has been from time to time by legislation, has been generally accepted to enshrine the common sense of the people. And much as we may like to laugh at our courts and our legal system, as we often do in the case of a great many of our institutions, let us not forget that our legal system and our Common Law are infinitely preferable to anything we now see in Europe or outside Europe. No legal Member of this Committee has any need to offer any apology for seeing to it that the principles of our Common Law, which are the principles of our civilisation, are not wildly thrown away, or that if they have to be departed from temporarily in time of emergency, those departures shall be limited and regulated, and people shall not be allowed to go beyond the limits which the House of Commons has imposed.
I hope the Committee will not accept the Amendment and that the hon. Member for Nelson and Colne (Mr. Silverman) will not press it. I am bound to say that I think this question was largely covered by our earlier discussion and the undertaking which has been given. In any event the certiorari applies only in very special cases, but what the Committee is interested in is to see that where there have been doubtful convictions or excessive sentences there is some review. In the vast bulk of cases certiorari would not come into the picture. I would suggest that the case that the hon. Member for Nelson and Colne put is such an improbable one that it is not necessary to provide for it, even if any danger might result from its happening. He said that a court might set itself up in any part of the country. Well, I suppose that is true, and that any judge who is sent on circuit might set himself up at Land's End or anywhere else in the country. It is a theoretical possibility that His Majesty's judges might set themselves up in this way, but the answer is that the proceedings would be nullified. I think it is a very unreal danger. The fact that these courts have complete jurisdiction and are presided over by a judge is a complete answer. You cannot say to a High Court judge, "If you are to do this duty, you are to be treated as an inferior court."
The Attorney-General has, I think, given us only a partial answer. He said that you cannot tell a judge of the High Court that his court must be considered as an inferior court. But what is there in this Bill which ensures that? As far as I can see, there is no assurance in this Bill that the president of one of these courts shall be a High Court judge. He may be a county court judge, or a lawyer with as much experience and qualification as a judge of the High Court. Therefore, it is not the answer to this Amendment, although it may be a good answer to say that you cannot tell a High Court judge that he will be subject to review. But a High Court judge is already subject to review in many respects.
I cannot understand the mentality of the Government. It seems to me that they are asking for so much trouble, and trouble which they need not incur. What we are trying to ensure is that the old rights of the civil person by way of certiorari, or whatever you may like to call it, shall not be taken away. It is no answer to say that the president of the court shall be a High Court judge and that you will insult him by saying the position ought to be reviewed by someone else. Will not the right hon. and learned Gentleman think a little more about it and give the Committee satisfaction that no technicality will be used for the purpose of depriving persons who may be brought before one of these courts of a right which he might otherwise have?
I would like to ask the Attorney-General a question, not by way of argument, but because I do not know the answer, and I think the answer may shorten the discussion. If I got the words of the hon. Member for Nelson and Colne (Mr. Silverman) aright, they are:
Courts under this Act shall be deemed to be inferior courts in relation to the High Court of Justice.
Would these words really mean anything in a declaratory Act? Would they in fact bind the courts to take that view? The word "shall" seems on the face of it, to a layman, not entirely appropriate in something which is a mere declaration, and it seems to me that if we could have an authoritative answer, it might dispose of the Amendment altogether. I would beg the Attorney-General not to argue with us on the basis of what is unimaginable as a fact. The whole excuse for this unimaginable Bill is that some almost unimaginable circumstances might arise to which the Common Law could not be made to apply. There would be nothing whatever to be said for this Bill if we were not living in almost unimaginable times in which it is possible to think of persons being kidnapped from one county to another and of all sorts of other things which are not in the imagination of the Attorney-General or other respectable persons in civilised countries.
I have not the manuscript of the Amendment in front of me, but I dealt with what I assumed the hon. Gentleman wanted on its merits, irrespective of whether technically the words would bring about that result. My hon. Friend may be right in suggesting that the Amendment would not make any difference. I thought that the hon. Member for Nelson and Come (Mr. Silverman) wanted the matter dealt with on its merits, and if the Amendment is rejected, the fact that it was not in the right form does not matter.
This is a far more important question than the Attorney-General has realised, but I do not want to press the matter at this time, because I do not think the opportunity has been taken to consider what the implications of it are. If it be true, as was suggested by the hon. Member for Cambridge University (Mr. Pickthorn), that in a declaratory Act we cannot make certain that the court would take the view which the Amendment sets out, I suppose it follows that we cannot say, as the Attorney-General said so enigmatically, that the courts would not be held by the High Court to be inferior in the sense that one would like the Amendment to make them inferior. It is true that it is almost impossible to conceive that the president of one of these special courts could do anything so extravagant as I described in my speech and set up his special court anywhere. It is not, however, so inconceivable that in times of excitement and disturbance such as are contemplated he might go first a little outside the limits of his area, and then a little more outside them, and then, under the stress of disturbance, commit some other excess of jurisdiction. I do not think it can be lightly assumed that in circumstances of that kind no court will ever exceed the powers which the House has given it and which the Home Secretary has given it by Regulations. I appeal to the Attorney-General to consider this question again before the later stages and to see whether he cannot devise some safeguard against the abuse of these very wide powers. I beg to ask leave to withdraw the Amendment.
I had an Amendment down which was designed to bring a certain point forward. This Motion is the only chance the Committee will have of expressing any view on the Bill. It seeks to set up special courts hitherto unknown to this country, and in time of unprecedented difficulty to deal with certain unpredictable events. It may be that these courts should be set up, but I would have preferred a simpler system of giving courts-martial power to try civil cases. If that system had been adopted, most of the discussion we have had to-day would not have taken place. Parliament should be able to keep some form of control over these courts. It may be right in normal circumstances that Parliament should not be able to discuss what is done in the law courts. That is generally accepted as a wise provision, but these courts will be different from the ordinary law courts, and Parliament ought to keep some control over what they do. I do not suggest that they should interfere with the sentences, because now that the Home Secretary has promised a revising body many of our doubts and difficulties have gone. I would like to have an assurance, however, that in some way the House of Commons shall be able to discuss what these courts have done during a time of emergency, and if they have transgressed, the House should be able to bring the offenders to book.