; I beg to move, "That the Bill be now read a Second time."
The purpose of this Bill has, I think, been misunderstood in certain quarters. It is thought by some that the object of the Government is to establish courts-martial, or some other form of military tribunal, for the punishment of civil offenders. The exact opposite is the case. The object which the Government have in view in promoting the Bill is to avoid the necessity for establishing anything in the nature of military courts. The Government have worked out a plan which I shall outline to the House, but I must first explain why the Bill is needed at all, in view of the fact, which I have just stated, that all that the Government have in mind is the establishment of civil courts of a somewhat special character.
The House may recall that, in the Emergency Powers (Defence) Act, 1939, in Section 1 (5), words were included specially against making provision by regulation for the trial by courts-martial of persons not subject to military law. Those restrictive words, confined as they are to courts-martial, might not, indeed, have been an obstacle to doing what the Government now propose, but as we felt that the inclusion of such restrictive words in the Act of 1939 might be held to imply an intention to rely solely on the normal machinery of justice, we thought it right to come to Parliament with proposals for legislation and to explain, frankly and in some detail, what it is that we propose.
We do not contemplate any general displacement of the ordinary machinery of justice. The special courts that we have in mind will operate only where, owing to military developments, the ordinary machinery of justice can no longer meet, or fully meet, the requirements of the case and they will operate only so long as the emergency continues. The sort of case that we have in mind is where, after an attempted invasion by sea or air, or possibly after an exceptionally severe air attack, a state of things prevails in which, as part of the process of re-establishing normal conditions, it is necessary to have courts in operation which can deal with grave offences far more speedily than would be possible under the normal processes of justice. For this purpose, if the case should arise, we need special courts and we want simplified procedure. I shall explain in a moment the constitution of the courts we have in mind, and the main changes of procedure that we propose. But I must first make it clear that while all the machinery will be got ready and the persons who would take part in the work of these special courts, whether in a judicial capacity or as subordinate staff, will be designated in advance, the courts will actually operate only where a state of grave emergency has been declared by the appropriate authority and only for so long as that state of emergency continues.
That is a point which might be considered. The plan which we have in mind is a plan which has been worked out in conjunction with the military authorities. There is no question here of any difference of opinion between soldiers and civilians or of any conflict of rival theories. This is something on which there has been general agreement and it is important that that should be made clear.
All those who have been collaborating in this matter. The point I want to make clear is that this is not an attempt to override something that the military authorities would prefer. This represents the agreed view of the arrangements which could best be made, to deal with the state of grave emergency which may arise, and against which it is only prudent to prepare in advance, and in regard to which, if we do not make the sort of preparation which I am now about to outline, we may find ourselves left, of necessity, with an alternative which would be far less acceptable to all concerned.
Here then is the plan. It is proposed that suitable men of judicial rank or qualified to exercise high judicial office should be selected by the Lord Chancellor and assigned to act as Presidents of special War Zone Courts if and when an area is declared to be a war zone area. These Presidents will be empowered to hold their courts in such places in the areas so declared as will be most convenient. In settling where the courts will sit they will act in consultation with the military commander. They will be empowered to deal with offences of all kinds but it is contemplated that, in practice, they will deal only with the more serious offences which are of importance from the military point of view. In any such area there will still, no doubt, be justices of the peace available to deal with minor offences, but as regards major offences there must, in the view of the Government, be some swift and simple method of trial available in the circumstances which we envisage.
At present, under the ordinary peacetime procedure, offenders charged with serious offences must first be brought before examining justices before they can be committed for trial at courts of assize or quarter sessions. In emergency conditions, such as might result from invasion, this slow and elaborate procedure would not be practicable. It is accordingly proposed, when these special War Zone Courts have been set up, to provide for the elimination in any area declared to be a war zone, of the procedure of committal for trial and to enable offenders to be brought immediately before the special courts.
It is proposed, as I have said, that the special courts shall be of a civilian character; that the ordinary rules of evidence shall apply and that offenders charged before them shall have legal representation if they wish to have, and are able to obtain, such representation. Moreover, if the offender has not previously been before an examining justice and if, consequently, there are no depositions, there must be some simple rules of procedure providing that any person charged with an offence shall be given before his trial full information as to the charge and the nature of the evidence to be given against him, and afforded a reasonable opportunity of preparing his defence. All those matters will be provided for by special rules.
I do not understand the point of the last observation. With regard to the remark which has fallen from my right hon. Friend the Member for Devonport (Mr. Hore-Belisha), I have explained to the House that this system of special courts which we contemplate could, probably, have been set up by regulation, as the law now stands, but we thought it better to come to the House with a Bill so that the House might know what is proposed. It is for the House to pass judgment.
Because that will be dealt with in the regulations. There will be a great deal of matter in the regulations which it is not convenient or practicable to bring before the House in a Bill.
Is it not the case that the right hon. Gentleman is now putting before us the real essence of what we have to discuss? Yet none of that is in the Bill. If this Bill is passed, the right hon. Gentleman can do what he has just indicated, but he can also do a great variety of other things.
Really, I suggest that the House cannot, fairly, expect to have it both ways. I have said that this matter could in all probability have been dealt with without bringing a Bill before the House at all, but it was thought desirable to bring this Bill before the House for the reasons which I have explained. It seemed only courteous and proper that the House should hale, in outline, the scheme which we contemplate putting into the regulations. The regulations when they are made will come before the House and the House will have an opportunity of debating them. [HON. MEMBERS: "But not amending them."] May I point out that there is an element of very great urgency in this. None of us knows when the situation for which this scheme is designed to provide may arise. None of us knows exactly what the conditions may be which will have to be provided for, and in my view there is a great deal to be said for preserving the element of flexibility, which is secured by dealing with this matter by regulation. It seems to me as an observer that one of the conspicuous features of this war has been that hardly anything has turned out exactly as we expected. At any rate, as far as the House is concerned, surely they will not find fault with me for dealing rather more fully with the subject-matter of the regulations than might have been thought absolutely necessary. I do not propose to detain the House for any length of time hut it did seem right that the House should have before it the general scheme of the regulations which we have in mind.
In view of what the right hon. Gentleman has said, and the fact that there is grave misgiving about this proposal, will he, instead of having the whole discussion of the Bill completed to-day, make arrangements so that when we have heard a statement, in addition to what we have seen printed, we may have an opportunity of amending the Bill in Committee?
There need not be any reference in the Bill to civil courts in order that provision may be made in the regulations for civil courts. The Bill does not say that there are not to be civil courts.
In view of the extraordinary powers that are being taken, could not the right hon. Gentleman take the House into his confidence at once and let us know whether it is considered that these emergency powers are absolutely necessary and wise at the present time; and whether this will mean the abolition of civil courts and the setting up of military courts to meet an emergency?
I was trying to explain, if the hon. Gentleman had followed me, that the purpose of the proposal is to enable any situation that may arise to be dealt with, as far as is humanly possible, under the machinery and procedure appropriate to a civilian court instead of having to fall back, as we undoubtedly could and might have to fall back, on courts of a military character. With regard to the point made by the hon. Member for Bridgeton (Mr. Maxton), I suggest, with great respect for his experience of Parliamentary procedure, that it would he better to reserve a decision on that matter, at least until the opening speech has been made.
As I was saying, the special courts which we propose to set up will differ from the ordinary courts of assize or quarter sessions in two important respects. First, there will be no jury, and secondly there will be no appeal from the decision of the court. The court will be empowered to impose any sentence authorised by law, including the death sentence for any offence for which the law authorises capital punishment. If the death sentence is imposed it is proposed that the President shall have power to respite that sentence, if he thinks there are circumstances which make it right to delay the execution and to enable the question of commutation by means of the Prerogative to be considered by the Home Secretary. There will, however, be no right of appeal to the Court of Criminal Appeal.
These special courts will, as I have said, have power to deal with all kinds of offences, but they will also have power to refer to other courts any case which it is not necessary or appropriate to deal with under this special procedure. For instance, if a case of minor importance is brought before them, they will be empowered to refer that case to the local justices. Again, if a case is not of a kind which it is necessary to deal with under this special procedure the War Zone Court will be empowered to refer such a case to any court of assize or quarter sessions sitting in a part of the country which is outside a war zone. Moreover, if a case which is brought before the justices appears to be more appropriate for a War Zone Court, the War Zone Court will be empowered to take the case out of the hands of the justices and to try it.
The question whether the President of the court shall sit alone has been carefully considered. The Lord Chancellor has been in consultation on the subject with some of those who are expected to exercise this responsibility if the need arises. As a result, it has been thought that it would be advantageous to associate with the President of the court two justices who will have knowledge of local circumstances and will be able to assist him with their advice.
The President will pay due regard to the opinion of the two justices, but they will not be in a position to over-ride his judgment as regards either conviction or sentence. This, in outline, is the plan which we have in mind, and, while I do not bind myself absolutely to details—
On a point of Order. The right hon. Gentleman is not referring to the Bill but to the regulations which are not before the House. He is telling us what he intends to do when the Bill has gone through the House, and I submit that it is hard lines for the House to consider this Bill when the right hon. Gentleman has not explained what are the intentions of the Government contained in the regulations.
On a point of Order. Is it competent for the House to discuss what are in effect the regulations which are not presented to the House? Is not the appropriate time to consider the regulations, or even to explain them or to adopt them, when they are first presented to the House?
I quite appreciate the concern of hon. Members, and I might say that these are matters which have caused me considerable concern. But, speaking for myself, I should feel in a far better position to appreciate the merits of a Bill which is inevitably not self-explanatory if I knew the action which it was proposed to take under the Bill; and I thought I was assisting hon. Members, and I am sure I have been assisting some of them, by setting out in quite general terms and as briefly as I can the general plan which the Government have in mind. I think there is some unreality in a number of the comments which have been made. I wonder whether hon. Members really appreciate what it is that we are trying to do, and what the situation is that we are really trying to face. What would be the position if no such provision as this were made—a military regime lasting for so long as military necessity justified. We are trying to secure by these provisions that that inevitable military rule, which must supervene in the vital interests of this country in certain circumstances, shall be replaced, as soon as may be, not by the normal processes of civilian justice with which we are all familiar, but by something which, though more summary, is at least based upon our normal civilian procedure. That is the purpose, and the sole purpose, of this plan. I told the House that the military authorities themselves were in full agreement with those who advised His Majesty's Government on these matters in thinking that a plan on these lines was desirable if it could be carried through with the authority of Parliament.
Now I hope I may be allowed to proceed. As I have already said, these courts will be empowered to pass such sentences as are authorised by law, but it may be that in the situation in which these courts will be operating some further strengthening of the ordinary law will be required. This does not arise directly out of the Bill, but I mention it so that the House may review the problem as a whole and may have as clear a picture as possible of the sort of emergency of which we are thinking. If, for example, extensive looting should take place or if there should be apprehension of extensive looting in a war zone area, it would obviously be necessary to have power to inflict the most drastic penalties. It is proposed, not under this Bill but by a Defence Regulation, that in such a situation of acute emergency as is contemplated the courts should be empowered to impose the death penalty for looting. The death penalty will not, of course, be the only penalty. The court would be empowered, if it thought fit, to impose some less serious penalty. It is proposed —and I am being frank with the House —to provide by Defence Regulations, again not under this Bill, drastic penalties, including the death penalty if necessary, for the offence known in military language as "forcing a safeguard," that is to say, forcing one's way past a military picket or overpowering a sentry. There may arise cases in which it is necessary to close certain roads or certain places to civilians, and a grave view must be taken if any persons attempt to disregard these restrictions and to force their way past military guards.
It is possible that further Defence Regulations may have to be made imposing special restrictions on civilians and imposing penalties for a breach of those restrictions; but, apart from such special cases as I have already mentioned, it is believed that the existing law as supplemented by emergency legislation will be sufficient for dealing with all such offences. As the House knows, the ordinary criminal law has been supplemented by the Treachery Act, which imposes the death penalty for acts of espionage or sabotage committed with intent to assist the enemy, and by numerous provisions in the Defence Regulations relating to signalling, communicating with enemy agents, spreading false reports and so on.
I have already referred to the question of military courts, which some hon. Members seem to fear we may be trying to introduce by a side wind. I have assured the House, and I am sure the House will accept my assurance, that the reverse is our intention, but there might arise a situation of such extreme gravity and of such a nature that, as I have already said for the time being the military authorities must be supreme. They must be responsible for all executive action in an area which is actually the scene of military operations. They might in such circumstances set up what has sometimes been described, I believe, as a system of military courts under what again I believe is sometimes described as martial law. Martial law in this country is a phrase of very indefinite import, but the system of military rule that I have been describing, which might include something which might reasonably be described as a system of military courts, is contemplated by the Common Law of this country in cases of grave danger when the safety of the people is the supreme test of action. Some people there are, I know, who think that instead of taking the novel, and as it appears somewhat controversial, course which the Government propose to adopt here, we should have been content to rely on the powers inherent in the military authorities for dealing with cases of emergency, but there are solid, substantial reasons against this. In the first place, everyone, I am sure, will agree that the sooner you can get back to the processes of ordinary civilian law, in the sense in which I use the term, so much the better. It is also the fact that in the circumstances that we have to envisage, the military authorities will have their hands very full. They do not want to be charged, in addition to their primary responsibilities of the greatest gravity, with the business of setting up some system of military tribunals to deal with civilians. Finally, there is this most important consideration, that in an emergency the action taken by the military authorities whatever it may be, is always subject to the test of actual necessity. It is, therefore, subject, except in so far as it may be action of an irrevocable nature, to subsequent interference in one way or another. It is surely very much better that so far as possible the action which is taken should be taken under a procedure settled in advance, approved or accepted by Parliament, and in accordance with Regulations which have been prepared with due care and submitted to the opinion of the two Houses of Parliament. For these reasons the Government unhesitatingly reject any suggestion that, in lieu of adopting the procedure which I have been outlining, we should rely on the powers which are inherent in the military authorities in times of grave military emergency.
I have only a few more words to say. Detailed provisions for the establishment of these special courts will be made by defence regulations which are now being prepared. These regulations will be laid before Parliament in the ordinary way. Hon. Members will then have an opportunity of examining the scheme in detail and the House can, if it so desires, discuss the regulations in Debate. Meanwhile, I hope that the explanation which I have given will prove to be a sufficient indication of the emergency procedure which it is proposed to adopt. There is, I repeat, no intention of setting up these special courts, and bringing this emergency procedure into operation, until there arises a critical situation which calls for this special means of dealing swiftly with offences by civilians, and it may be that it will not be found necessary to put this scheme into operation at all, or at any rate not on any extensive scale. But in these days, as I have said, we must be prepared for all contingencies. It would not be possible to leave such a system as this to be improvised at the last moment when the need for it arose. The Government have, therefore, thought it right that all preparations should be made so that the scheme could be put into force at a moment's notice, if need arose; and I trust that the House will be ready to pass this Bill through all its stages this afternoon, so that we may press forward with the completion of the scheme without delay.
Could my right hon. Friend explain the words:
Where the military situation is such as to require the institution of special courts"?
Who is to be the judge of that, the Home Secretary or the military authorities?
In regard to these special courts, which are to be civilian courts, the decision will be taken by a civil authority, presumably the Home Secretary; but it will be taken after a review of all the circumstances, and of course after consideration of military opinion. I ought perhaps, with permission, to say that I have spoken throughout as if this scheme were confined to England and Wales. I have done so for reasons of convenience; but, obviously, it is applicable to the whole of the United Kingdom. My right hon. Friend the Secretary for Scotland and the Scottish law officers will have certain responsibilities in connection with its administration in Scotland.
Will the Home Secretary explain this point? At the beginning of his speech, he said that there was an opinion in Government circles that the Government had the powers to do what they wanted to do without this Bill. How does he account for the fact that the Bill expressly mentions that the Government have not the powers?
Are we to understand, from the Home Secretary's speech, that these powers are to be limited only to those parts of the country where there is an invasion or an air raid?
I apologise if I did not make that perfectly plain. We contemplate that these courts are to function within the narrowest limits, consistent with the practical facts of the case.
The right hon. Gentleman has given a careful explanation of the intentions of the Bill, though, I am bound to say, not of its actual provisions. As to the broad intentions of the Bill, there is nothing to which the House would take any great objection. The Minister for Home Security explained the position; I cannot myself explain it in legal language, but I understand the broad situation as he put it to the House, that if no such Bill were introduced and there were an in vasion and the ordinary courts could not function, there would have to be some courts to deal with looting and so on, and those courts would have to be military courts. I am told that the position, without this Bill, would be that in such circumstances the military judges would have to take their chance of getting an indemnity afterwards. The right hon. Gentleman has explained that, in order to avoid that situation, he proposes to establish civil courts with civil judges, who, I gather, would be attached to military headquarters and would move about with the Forces while they administered the civil code. That, I understand, is the intention of the Bill, but the difficulty is that there is nothing of all this in the Bill.
It is evident from the Minister's speech that the whole content of this Bill is in the regulations; and the House has not seen the regulations. Half an hour ago the House had not the slightest idea of what the regulations contained. The House is really in the same position as though a Bill had been introduced without notice. The real content of the Bill has been explained to us verbally, but we had no notice of it before. I do not think the House would be doing right to pass this Bill through all its stages until we have had an opportunity of looking at these regulations, and of forming our opinion upon them. On a previous occasion there was a difficulty of this sort, which was solved by a number of Members from all parties looking at the regulations, with the Government, and afterwards recommending acceptance of them to the House. The regulations then went through without much difficulty. In the present circumstances the House, as it is the business of Members as a whole to look after the liberties of the subject, cannot allow a Bill to pass without any more knowledge of it than was given in the speech of the right hon. Gentlemen, which we could not thoroughly apprehend, with all its significance, while he happened to be on his feet.
Could not a great deal of the governing safeguards which were mentioned in his speech be embodied in the Bill? I have looked at the Bill, and I have thought of one or two fairly simple Amendments which would provide these safeguards. At present the Bill would allow martial law, without any qualification, to be imposed on the civil population to
morrow. I would suggest that wherever the special courts are mentioned, the term should be altered to "special civil courts." I have thought of another Amendment, to meet the point which has occurred to the hon. and gallant Member for East Nottingham (Captain Gluckstein). The phrase
where the military situation is such as to require the institution of special courts
could be amended so that the power which is given could be confined more strictly to a situation where the ordinary courts could not carry on their normal functions. I think the Government will have to consider Amendments of that kind if they wish the Bill to go easily through the House. I foresee that the most important safeguard that we shall have to introduce arises from the fact that these courts will be carrying through a procedure which must be very drastic, and which must be practically immediate. The ordinary court-martial procedure allows a fairly lengthy process so that the accused person may know what he is accused of and can prepare his defence beforehand, but these regulations must lay down very special precautions. The accused person must know what he is charged with, and what will be the case against him before he goes to court. If he cannot always be defended by a barrister, there should be arrangements so that he could have some sort of "prisoner's friend." I presume that the ordinary rule of civil evidence will apply, and, as these will be all criminal cases, which would normally be cases for a jury, I hope that the judge will not sit by himself, but that he will have civilian assessors, or whatever they are called, who will give the civilian point of view —which will by no means be any the less severe. Have all the new offences been stated? Looting and forcing the barriers across the roads have been stated as new offences for the death penalty. Are there any others?
New offences are a part of the Bill, and it is a very serious thing to accept the creation of new offences involving a death penalty without any further discussion. There is another matter which has not been cleared up. Will these courts try civilians only, or soldiers as well, or will there be civil and military courts side by side?
I think it is made clear in the Bill that persons who are subject to military law may be tried by these courts. That is a matter for the military authorities; they may hand people over if they like.
It would not be competent for us to carry on a discussion of the right hon. Gentleman's speech, because of our lack of apprehension of what is intended, but the broad intention of this Bill is something that we support, and particularly the substitution of civil for military courts wherever it can be done. Apart from everything else, it is a bad thing that military officers should be acting as judges instead of fighting the enemy. But the Bill is far too vague at present for the House to accept. I suggest that the Government should not proceed with it further until the House has had an opportunity of considering the regulations.
The right hon. Gentleman the Member for Keighley (Mr. Lees-Smith) claimed that the Bill would secure the substitution of civil courts for military courts. I do not know where he got that idea. He cannot have got it from the Bill, but he may have got it from the right hon. Gentleman's explanation. Our whole difficulty is that the Bill and the right hon. Gentleman's speech are so different. From the Bill, the only indication one can get is that it is the intention of the Government to substitute military for civil courts. Line 4 of the Preamble says that
the said powers did not enable provision to be made for the trial by courts-martial of persons not being subject to the Naval Discipline Act, to Military law, or to the Air Force Act,
and line 12 explains that the powers are now to be taken
to secure that provision for the trial of such persons by special courts may he made.
That is to say, that where the old law prevents trial by court-martial the Bill will provide for trial by the special courts. The only conceivable reasonable explanation of that is that they are going to have courts-martial in spite of the old Act, if they like. The right hon. Gentleman now says to us—and we like to hear all his explanations—exactly the kind of civilian courts they are to be. H says they are to be special courts, and he tells us all sorts of nice things about them, or at least some are nice and some are not There is to be no appeal. That is not at all so good for the civilian, but the rules of evidence are to be preserved and legal representation is to be afforded. But there is nothing about that in the Bill. What are we passing to-day? Are we dealing with this Bill or with the right hon. Gentleman's speech? It is all very well for anybody to come before this House and say, "I have a Bill which entitles me to cut off your head, but I can assure you that I am only going to cut your toe nails." That is what his speech amounts to. He says, "I am taking all these enormous powers, but I am not going to use them, so you need not worry." That is all evidence that this Bill has not been thought out.
I am well aware, and nobody need tell me, of the enormous emergency under which this country is labouring at the moment, when the circumstances in which the powers of this Bill might have to be put into operation may come upon us this very night, but the Government have been aware of the possibility of this situation for weeks. If they wanted to prepare us for the emergency, they might have done so perhaps by a preparatory announcement by the Minister, in answer to a question in this House, that certain legislation was in contemplation, and we might have had the real Bill by now about which we have heard only in the last half hour or so.
If we pass this Bill to-night, we shall give to the right hon. Gentleman power not only to do the things which he has told us he wants to do, but to do all the things that are in this Bill and which someone might think it necessary to do. He has tried to frighten us with the idea that the alternative to this Bill is military rule, but all kinds of military rule are possible under the Bill itself. There is no reason why the special courts are not to be military courts, only the right hon. Gentleman has said that at the present
moment he does not think that they will be. That does not give us very much safeguard. We know definitely, when we turn to Sub-section (2) of Clause 1, that the regulaions may provide
for the proceedings of such courts being subject to no review or to such review as may be so provided for.
"Such review as may be so provided for" must mean less review than is possible under the existing law, otherwise why put it in the Bill? The full procedure of the Court of Criminal Appeal might be undesirable or impossible in this case, but a great deal more is ruled out than that where arrests have been made under justifying circumstances of this sort. Such safeguards as there might be are left out of the paragraph of this Bill that we are passing to-night, if we do pass it. They are left entirely to our confidence in the discrimination of the right hon. Gentleman under the regulations. Having had the opportunity of consulting the right hon. Gentleman on previous regulations, I would have very considerable confidence at all times in his discrimination in the use of any regulations, but, after all, we are a responsible body, and we are asked to pass a Bill now which, unfortunately, has not been preceded by the kind of consultation which took place on previous occasions, and which would have been most desirable on this occasion. We have no alternative but to deal with the Bill as it stands. Had the right hon. Gentleman said he would give us a chance and see whether he could not alter it a bit, we would have had a second thought. Once we pass this Bill it will be enforced, and action will be taken upon it before we have had any chance of considering any kind of revision. Therefore, I am extremely suspicious of the situation that we are now creating.
I am not imputing any sinister motives to the right hon. Gentleman. I have had the privilege of working with him, and I believe that as far as he is concerned the regulations will be of the best kind and that the Bill will be interpreted as liberally as possible, but I do not think that we ought to leave it quite like that. There ought to be something more definite, and something ought to be put into the Bill to remove the dangers which many of us consider are likely. We have been told to rule out courts-martial. They are to be civilian courts, but surely the essence of our Constitution is the separation of the powers of the Judiciary from the Executive. In the civilian courts, whether courts-martial or not, whether it is a colonel or a major so-and-so, or whether it is some experienced magistrate, we have nothing of that safeguard, but they will be much more under the power of the Executive than the ordinary judicial processes of this land.
There is nothing in this Bill to prevent courts-martial in their ordinary sense from being set up under the Bill. I have had some experience of courts-martial. I have served under a great many field generals, and at one time while convalescent I acted as judge. I have the greatest respect for the average officer who sits on courts-martial. These officers always intend to do justice, but they have not the necessary training, and they tend to disregard the rules of evidence. It may be said that these are to be civil courts. Are we going to be secured against one of the greatest evils that I have seen in the administration of courts-martial, and that is, the instruction from above from the military authorities? I have seen this operating in scores of courts, where it has been said, "This offence "—let us say loitering or anything else—"is particularly prevalent in this area, and the commanding-officer desires that it should be stamped out at all costs." I have known that sort of thing happen again and again. The intention of that is merely that the offence should be considered seriously, but the effect of it is to make the court consider that there must be a conviction in order to make an example, and it has an effect upon the actual process of the trial.
These are not imaginary cases. As soon as you set up a special system of courts divorced from the ordinary processes of law and not bound necessarily by the ordinary rules of evidence, and subject to instructions from the executive, I fear that we may get a deterioration of the administration of justice which might act very prejudicially. I believe that, with due consultation and with a Bill drawn more in accordance with the speech that the right hon. Gentleman has made to-night, we might produce a proposal which would secure the safety of our country without endangering the liberty of, and justice to, the individual.
I rise to reinforce the appeal that has been made to my right hon. Friend by the two previous speakers. It is by now quite plain that this Bill does not carry out the intentions of my right hon. Friend. He has produced it as a Measure to protect the civilian from a harsh military procedure. In fact, however, the Bill does exactly the reverse and is expressed to be a Measure to subject the civilian to martial law. There is nothing in the speech of my right hon. Friend which justifies such a purpose. Indeed, the whole intention of his speech was to reject the purpose of this Bill. The Bill makes provision—and it is a strange sequence of thought—for the apprehension and punishment of offenders, and then subsequently for their trial. If the House will look at Sub-section (2) of Clause 1, I think they will see that it illustrates the spirit in which the Measure has been drafted, for "trial" is mentioned as an afterthought after the apprehension and punishment. When we are dealing with matters of justice we should act with the greatest circumspection. First of all, because we are fighting for our system of justice as against a much harsher system. Not only must we be just, but we must seem to be just. If this Measure is allowed to go through the House of Commons in its present form, you will be handing over to the Executive the most extreme powers without any of the safeguards mentioned by my right hon. Friend.
Nobody would withhold from the Government in this time all the powers that are necessary for the efficient conduct of the war, and indeed, without any protest and within a very few minutes of time, the House passed the principal Act to which this is an Amendment. That shows the spirit of good will in which the House of Commons prejudges any request made by the Government. The Government should reciprocate, and when it is pointed out to the Government that there is danger in a Measure such as this, they should meet the wishes of the House of Commons, as they have been most clearly expressed this afternoon, and reconsider this Measure. The speech of my right hon. Friend contained the outline of an entirely new judicial system. I am not sure that what he said was in any respect unjust. It is quite plain that in the event of an invasion you must have a very expeditious system of doing justice. I am not sure that I object to anything that he said, even though he was handing over the powers of death to the courts which he is about to establish. But it is an entirely new judicial system, and the House ought to have at least a short opportunity to consider the significance of his remarks and what it is he is trying to establish. There is nothing of that kind in this Bill.
What does the right hon. Gentleman consider would be a reasonable period, in view of the emergency with which we are faced and the fact that the situation visualised by the Home Secretary might come into operation in the next 24 hours?
That emergency has existed for the last three or four weeks, and there is no reason whatever why the Government should not have produced this or any other Measure three or four weeks ago. We ought at least to have a day in which to read the OFFICIAL REPORT containing the statement of my right hon. Friend. We do not want to embarrass him and withhold powers from the Government which are absolutely vital, but the fact is that the Bill does not correspond with what my right hon. Friend said this afternoon, and the House of Commons at least ought to be given the benefit of the doubt on behalf of the citizens whom it is our duty to protect. My right hon. Friend is one of the most reasonable administrators. He shows courtesy and consideration in every respect. Nobody is trying to embarrass him. He would get his new Bill through possibly without more than two or three speeches—a very short discussion. I think we might at any rate be allowed a slight opportunity of considering the speech of my right hon. Friend in the light of this Bill, and my right hon. Friend might also choose to reconsider some of the evils in this Bill to which attention has been called.
We must consider the question of whether we are going to give a Second Reading to this Bill in the light of the circumstances with which we are faced and the present weapons with which we have to meet these circumstances. My right hon. Friend the Minister for Home Security did explain briefly the position in which the military find themselves today if the necessity arises of constituting what is known as military law. I think it is only right that the House should appreciate the position in which military commanders should be placed and also appreciate the distinction—which was not quite apparent in the speech of the hon. Member for West Middlesbrough (Mr. K. Griffith)—between courts-martial and military courts which have to function should military law be necessary. The hon. Gentleman will, of course, appreciate on a moment's reflection that if it is necessary for military law to be established in this country, the ordinary forms of courts-martial are not necessarily active. They are courts which are established for the trial of those subjects under military law, which is, roughly, the Army as it is constituted to-day. If martial law is established by a military commander on the ground of necessity, he has then to use such material as is at hand. He can use the machinery of courts-martial, if it happens to be there; otherwise he has to operate, as many British commanders have had to operate throughout history, with simple committees of officers who investigate the matters which come before them. If he does so, he is subject to the point which my right hon. Friend made and which deserves emphasis. He is taking his career and his life in his hands, because, if he shoots somebody in those circumstances, however strongly his military court has recommended it, he is liable to be tried for murder, and many a British commander has been so tried in the past. But, apart from that, he has to consider—and it is no mean task in these days of emergency regulations —whether the necessity is sufficient to justify him in utilising his powers. That is to be said from the point of view of the commander.
Now look at the effect. If he sentences someone to death, it is irrevocable, and the sentence takes effect, but suppose he thinks the crime is deserving of something less than the death penalty, say, 10 years' penal servitude. If the offender goes outside the martial-law area, then the sentence of penal servitude comes to an end, and no effect is given to it. He cannot be transferred to a civil prison. From every point of view these are handicaps which have to be faced. Supposing the position with which we are envisaged to be one in which Germans have landed somewhere near the Wash, we must consider what must obtain in Norfolk or East Anglia, the region of invasion. The Home Secretary comes forward and says, "In that area I ask you to accept as a substitute for courts or military committees, under martial law, special civil courts which will be manned by someone of High Court judge calibre, sitting with two justices and will have rules of procedure which will be the same as apply in our civil law, except that the committal procedure will he done away with in any case which comes before the court" —
The hon. Gentleman made two points. He made that point quite clearly and audibly, and he also argued against some provisions in my right hon. Friend's speech. Surely one is entitled in ordinary Debate to follow both those lines of argument, and that is what I am seeking to do at the present time. I am dealing with the points he made with regard to the withdrawal of powers of committal for trial. I ask him to face facts. Let him and other hon. Members imagine that Norfolk is partly held by the enemy. Does he really think that if a civilian cuts the telegraph wire to brigade headquarters in Norfolk when a bombardment is going on, you are to get two justices to spend all day hearing evidence taken down in longhand before he is then committed for trial?
The hon. Baronet has not paid attention to the proceedings. I am suggesting that in these areas there will be civil courts but that some of their more elaborate trappings will be done away with.
My hon. Friend has made an excellent debating point, but on-which, on consideration, he will see
The difficulty which I see in the event of invasion is that any civil court, including those which have been adumbrated by the Minister, could function in what I might describe as forward areas. I think the Minister himself envisaged that in these forward areas it might be necessary to have what is commonly known as military law, that is, the supersession of ordinary law and the commander taking measures necessary to protect the safety of his troops in the country he is holding. It seems to me that the better method would have been to have given the military commander in the forward areas the right to certify that in such areas trial by civil courts of any kind was impossible, owing to the military situation and the difficulties of communication, and that in these areas, and these areas only, where he so certifies, there could be trial of civilians by court-martial as distinct from military courts. In these circumstances you would have a court which is already functioning, for which personnel is easily obtainable, and whose decision could be reviewed in the ordinary way as decisions of courts-martial are reviewed to-day. I see the difficulty of the courts of the kind which my right hon. Friend envisaged functioning in the forward areas in which there is fighting or fighting is imminent. Therefore, if one could have a provision which could be carefully safeguarded that in such areas, and such areas only, courts-martial could function, a great deal of the difficulty which would face a military commander would be done away with at the present time. He would no longer be in the position of a military commander having to take the risk of estab- lishing military law. He would have the right conferred on him by regulation under this Measure to constitute courts which will be ordinary courts, with the rules of evidence applicable and with their powers subject, as I have said, to review.
That brings me to another aspect of the matter—what the right hon. Gentleman has raised by his discussion of the other regulations constituting the death penalty for the offences of looting and forcing a guard. It seems to me that at the present time one will have considerable difficulty in dealing with civilians in forward areas unless the local military commander is given power to impose certain local rules, the breach of which will be treated as an offence. For example, it may be absolutely essential in some areas that you should have an early curfew or special regulations, with regard to lights and the like, which the military commander has to recommend to the Deputy Regional Civil Commissioner, who then recommends them to the Civil Commissioner, who, in turn, applies to the Minister. All that channel has to be swept before those regulations can come into force. If these courts or any courts are to be instituted—
It is certainly vital but not relevant and my submission, Mr. Speaker, is that the hon. and learned Gentleman is speaking about what the Home Secretary described as his intention. Once these powers are conferred, any number of regulations my be introduced later to which the right hon. Gentleman has not referred. Therefore, I submit with all humility that there ought not to be any discussion at this moment directed to anything except the powers which are conferred on the Executives by the Bill before the House. Otherwise, we shall find ourselves completely in a fog.
One of the difficulties which will occur in the situation which the right hon. Gentleman envisaged as being the pre-requisite of the Bill was the absence at the moment of power in the competent military authority to make regulations which are necessary for his locality, and I suggest that these courts would function with far greater efficiency and power if the person who should decide what rules and regulations were necessary in order to defend the district which is given into his military charge was the military commander, and that he should not be required to apply to the Deputy Civil Commissioner, who in turn would go to the Civil Commissioner, and he in turn to the Minister.
Some of the speeches that have been made have not expressed the feeling which is deeply and widely held in the country to-day. There is an immense desire in every class and section of the community for vigour and action in punishing offences against the State and our war effort. I feel that some of the speeches that have been made will be interpreted as attempts to put a debating brake on the war effort of the country. In the last few months the country has been amazed by the small and almost unimportant charges which have been laid against civilians for serious offences which in fact amount to treachery. I know that it is not for the Home Office or the Minister to decide what charges will be laid, but for the Director of Public Prosecutions, for whom the Law Officers are responsible to this House. But I think it ought to be made clear that the country as a whole—and I am sure that on this point I speak for the vast majority of the citizens of the country—want such offences to be dealt with in the most severe way and under the most onerous charges that can be found, and that in that way and in the way of securing for them in conditions of difficulty a speedy trial, a trial which suits these conditions, we can discuss it, attuned in one way to the old legal ways which my hon. Friends and I respect so much, but also discuss it with the prospect clearly in mind of these old legal ways being impossible tomorrow. I think this House, irrespective of debating points and allowing, it may be, their very keen and active desire for adequate consultation to slumber for this once, ought to co-operate with the Minister in finding the best way of dealing with the situation. I suggest that the best way of dealing with it is to have these efficient and well-manned civil courts operating in areas which are liable to invasion, or actually subject to invasion, as far forward as they can go, and beyond that, and only in the fighting area, I ask the House to trust the military commander who has to defend that area with adequate powers simply to protect the safety of his men and leave their fighting effort untrammelled.
I will not say that I am wholly in favour of the Bill, but it is very difficult to accept its meaning as laid down by the right hon. Gentleman in introducing it. I hope he will not think I am personal when I say that in reading it I am unable to find in it that which he himself mentioned in regard to it. If it is to be by regulations, I am convinced that we ought to know what the regulations are to be. At least some idea ought to be given us. The hon. and learned Gentleman has great knowledge of the courts, and he must admit that this is going to be a revolution. It is something that we have never experienced in this country, but every one of us to-day is faced with a situation the like of which we have never known before. Therefore, we must bring into operation things altogether outside the ordinary. I was wondering, though we all know that it is absolutely essential that a Bill should be brought in to meet emergencies, whether the powers to be vested in the commanding officer can be specified. Civil courts must go by the board at a time such as this, and we must allow a commanding officer the fullest authority to deal with emergencies that may arise, but I cannot see the utility of two justices sitting with him. They may have all the knowledge in the world of local conditions but not knowledge enough to satisfy the commanding officer, who might take no notice of them at all. I do not see what right they have there unless they have some corresponding power. What are they there for? Is it to counsel the presiding officer? Is there to be some learned clerk who will advise him on points of law?
The hon. Member is under a misapprehension. The presiding officer will be either a judge specially selected or a legal gentleman qualified for high judicial office, and not the military officer.
I take it that there is no appeal, and therefore the presiding judge will have the power of life and death. Though both the justices may be against him, they will have no power whatever to prevent his verdict being carried into execution. That is a terrific power to give to any individual. In a civil court a citation would be given, and the clerk of the court would explain exactly what was against the accused. When it is a question of death, he ought to be able to understand what he has to meet. I have heard before of legal authorities whose authority, when it came to a question of appeal, has been thrown to the wind. I do not want anyone to question whether it was right or wrong after I have been executed. I want to have some say in it before they execute me. A lawyer once said, "Let them hang you; I will make them pay for it if they do." I do not want anything of that kind in my case. I think there ought to be penalties, and there ought to be a high authority, and it ought to be done expeditiously, but there ought to be safeguards. Could not the right hon. Gentleman safeguard it by giving a citation inside the Bill of the crimes that should be enumerated and dealt with by this special court?
I should like to say a few words by leave of the House. I am sure that no one either on this side or on that wants to be involved in endless controversy. The Bill has been criticised on the ground that the powers that it confers go far beyond the scheme which I outlined. That, surely, is a criticism which could be made of any Emergency Powers Bill. The contents of the regulations which have been made, now filling a large volume, under the modest Act passed at the outbreak of the war, could not have been foreseen. It was not thought necessary to attempt to estimate what they might be when the wide powers conferred by that comparatively short Act were given to the executive Government. The same is true of this Bill. It comes forward as an amendment of the Emergency Powers Act, and it gives wide powers. I thought it right to explain to the House how it was intended that those powers should be used, but it is clear that many hon. Members have some misgivings in regard to them, concerned as they are with the important question of the administration of justice. I am perfectly willing here and now, on behalf of the Government, to give an undertaking that words will be introduced into the Bill to make it quite clear that the kind of court which can be set up under the Bill must be a civilian court. Because of the structure of the draft, this will require several Amendments, but they can be made quite easily, and I very readily give the undertaking now that they will be made.
There was another point raised by the right hon. Gentleman opposite with which I think it is not quite so easy to deal, although I have some sympathy with the right hon. Gentleman's point. He suggested that it might be desirable to insert in the Bill words defining more closely the nature of the emergency which would be held by the Government to justify the use of the special judicial procedure for which provision will be made by regulations. I would like to look into that point. It may be possible to do that, but I am not quite sure. I hope that at this stage the right hon. Gentleman will not press the point. Another matter of a general character with which I would like to deal was raised by the hon. Member for West Middlesbrough (Mr. K. Griffith), who wondered whether we could not in this case follow the sort of procedure which has been followed with advantage on both sides of the House in regard to certain other regulations that were made some time ago. I suppose that the circumstances have to some extent changed, in view of the fact that the Government have been reconstituted on a broader basis, but I am quite willing —always subject to the qualification that I do not want anything that would lead to delay in this matter—to arrange to discuss the terms of the regulations informally with a few representative Members of the House. I make that offer.
I hope the House will give the Government their support in an endeavour to get the Bill on to the Statute Book as soon as possible. It is true that the situation with which we are trying to deal in the Bill has been developing for some weeks, but the scheme at which we have ultimately arrived, although to some people it may seem to be something of which anybody could have thought in five minutes, has involved a great deal of thought and discussion, and we have introduced the Bill as soon as it seemed possible to do so. I hope hon. Members will consider whether, in view of what I have said, it would not be possible to make further progress with the Bill to-day.
What I hope is that, in view of what I have said, we shall finish the Second Reading to-day, and take the Committee stage, with Amendments which will be put down to give effect to the promise I have just given, at the earliest possible moment, to be arranged in the usual way.
Does the Home Secretary think it possible to graft Amendments on to this Bill while leaving the main structure of the Bill as it is now? With all due respect, it seems to me that the Bill is so drafted that the right hon. Gentleman will find it impossible in that way to meet the criticisms that have been made from all parts of the House this afternoon. Would it not be possible to withdraw the Bill and to introduce another Bill more in keeping with the points of view that have been expressed?
I hope that we may obtain the Second Reading to-day. I have taken certain precautions, and I am satisfied, on advice, that it will be possible to make Amendments in the Committee stage that will have the effect I have indicated. It cannot be done by a word here and there, but only by several Amendments.
While the whole House appreciates the necessity of allowing the Government certain powers to deal with a situation that may arise at any time, does the Home Secretary fully appreciate that perhaps he might be able to get an agreed Bill through the House much more quickly than he would be able to get a controversial Bill through the Committee stage? If the right hon. Gentleman does not carry the whole House with him, the Committee stage might conceivably be quite protracted, with a large number of Amendments put down from various parts of the Committee; whereas an agreed Bill might go through its Second Reading and Committee stage far more quickly.
I think it would be a pity to throw away the Debate which has already taken place. We might finish the Second Reading, and, if it was desired, discuss the form of the Amendments to be put down. I am advised that the framing of the Amendments to give effect to the promise I have given will not present any considerable difficulty.
I think the House would like to know where it stands at the present moment. We have had a Debate lasting an hour and a half, in which the Bill was presented by my right hon. Friend the Home Secretary, a speech was made from the Front Bench opposite, a speech was made by a right hon. Gentleman on this side, who is an ex-Minister, a speech was made by the hon. Member for West Middlesbrough (Mr. K. Griffith), speaking presumably for the Liberal party, and there were speeches by two backbenchers. We then had a winding-up speech by the Home Secretary. It is difficult for the House to deal with a Bill of this magnitude, which will effect the constituents of every hon. Member, without having a chance really to discuss it, and to have the winding-up speech at the end of the Debate. I fully appreciate that my right hon. Friend desires that this Bill should be passed as soon as possible, but other criticisms may be made as the discussion goes on, and I should like to have an assurance that we are to have an opportunity thoroughly to debate the Bill, whatever decision may have been taken after a discussion lasting an hour and a half. [Interruption.] The Home Secretary's speech was a fairly long one and he gave various promises to an hon. Gentleman who had spoken, without waiting to hear other hon. Members on this side of the House who might have a point of view to put forward. When discussing a matter of this magnitude, it seems to me that the views of all hon. Members ought to be heard before a decision is come to by a responsible Minister; otherwise we might just as well not come to this House at all.
With regard to the Bill, I fully realise that the necessities of the present time make it imperative that we should make changes in our judicial system in order to obtain speed and efficiency of working in circumstances where the ordinary procedure is impossible. There are two alternatives. One would be to have a declaration that a state of particular emergency exists in a certain area and that in that area, under the jurisdiction of the military commander, courts martial, the procedure of which is well known and well established, should take the place of the civil courts. That is one alternative, and in my submission it would probably be the better. There is no fairer or more just court than an ordinary court martial, as everybody who has had any experience of courts-martial knows. I think the ordinary citizen would fully appreciate the fact that in an area in which a condition of affairs obtained which made the ordinary functions of the civil court impossible, the military commander should take the necessary steps to keep law and order and to deal with offences by the well known procedure of a court martial.
That is not what the Government propose. They propose the other alternative—a special type of court which would be set up to take the place of the ordinary civil procedure. It is perhaps a pity—and certainly the speeches of hon. Members have shown it to be a pity—that in the Bill as presented the word "civil" is not inserted between the words "special" and "courts" in line 12, page 1. If that had been done, we should have known where we were. But my view is that it is not a good thing to set up this type of special civil court in the rather nebulous way in which it has been defined by my right hon. Friend in his speech. If we are to change the judicial system of the country, if we have to change it and to set up a special court, let us have a Bill which will set forth precisely what the powers of that court will be, what offences it can try, and how it will work. We shall then know where we are. The House will be able to debate the Bill, to make any Amendments it thinks fit, to act with great speed, and pass the Bill as quickly as you like.
I entirely agree that the country demands that drastic and efficient punishment should be meted out for offences which are treason. We should not play with people who are traitors to the State, but deal with them drastically, and to that end, it is necessary to have special powers and courts to deal with them. But to change the judicial system of the country by regulations, when we do not know what the changes really are to be —and shall know only when the regulations are issued and shall not be able to amend those regulations when they are laid before the House—is something that ought not to be passed through the House in an afternoon. It would be a simple thing to bring forward a Bill envisaging the machinery of a special court to take the place of the existing machinery, and the Bill could go through all its stages in a day; but if we are to set up that type of court, we ought to know precisely what type of court it is to be, and it should be plainly stated in the Bill. My own view is that that is not the type of court which the circumstances demand. I would sooner see the existing machinery of civil trial carried on in those areas of the country where it is possible, and where there is an area in which that is impossible, then the House should give authority to the military commander to set up an ordinary court-martial. If that were done, we should know precisely where we were.
This special court which is proposed will be a one-man court, but a court-martial is not by any means a one-man court. It is true that in this special court two justices of the peace are to act as assessors, but they will not have the slightest influence on the decision. They may protest and object but that will not make any difference. In the end, the decision will be the decision of the president of the court. Infinitely preferable to that one-man system would be the ordinary court-martial the decision of which is liable to revision, and the working of which is well understood by the people. I ask the Government to reconsider the question and withdraw this Bill. If they then decide to institute a special type of court, I ask them to bring in a Bill which we shall be able to understand—at least I hope we shall—and from which we shall see exactly the sort of court it is to be; but, better still, I ask them to leave the existing machinery alone, to take the necessary steps under certain conditions to declare martial law in certain parts of the country, and then in those areas to let us have the ordinary old-established and well-understood court-martial procedure.
I shall be brief, because I think the whole House is pleased that the Home Secretary has promised to consider Amendments to the Bill and not to take it through all its stages this afternoon. Those who have been Members of the House longer than I have will perhaps correct me if I am wrong when I say that this afternoon has been a unique experience. As far as my knowledge goes, I do not know of any Minister, at any rate in living memory, who introduced a Bill of such magnitude, hoped to carry it through all its stages in a single afternoon, and yet did not once refer to the actual provisions of the Bill he was introducing but talked instead of something quite different. The Home Secretary will remember that he did not once refer to a single Clause in the Bill. The curious thing is that although the Bill deals exclusively with the applications of martial law to civilians, the whole tenure of the Home Secretary's speech was to the effect that martial law should be used very sparingly. The Home Secretary also said that most of the offences which would conceivably be dealt with under the powers provided by this Bill could already be dealt with by powers already possessed by his Department. He referred to looting and other offences, and I think I am right in saying that he indicated that all these were covered by powers already possessed by the Government, or already put into regulations now in force.
As the Home Secretary has kindly promised to bring in Amendments to this Measure, I would ask him not to assume that the House, generally, approves of the outline of the regulations he gave in his opening speech. To be quite frank, his references to justices of the peace, sitting with a president of the court, made my blood run cold. I immediately thought of the type of gentlemen who own allegiance to the present Patronage Secretary, sitting with some president of a court in a given area. As far as I am concerned, if I had the choice between a military court and some courts of summary jurisdiction of the kind known to us all, I am positive that I, and most other people too, would choose the military court. I hope the Home Secretary will remember, in setting up new machinery, that he may be jumping out of the frying pan into the fire and may be making things worse than they otherwise would have been.
I would most earnestly suggest that in the new Amendments he produces, he should make some provision whereby the death penalty is in no circumstances imposed by these courts. Even in some of the Amendments to the Defence of the Realm Act passed in the early stages of the last great war it was laid down that so far as the death penalty was concerned the final word should not lie with courts comparable with those suggested. I do hope, therefore, in view of the fact that the death penalty is a final act, that he does not leave the power to implement it in the hands of local courts of this kind.
As I visualise it, the Home Secretary indicated that in certain cases people who had been apprehended could be sent out of the danger areas into comparatively safe areas—areas free from invasion or military turmoil. If that is so, I see no reason, except in certain circumstances where spies are caught or in the case of offences of another kind, which I need not specify, why people who have been apprehended should not be sent into another part of the country and dealt with there. Between now and the other stages of the Bill, I hope the Home Secretary will consider the points put forward this afternoon, and that he will realise that these are very serious powers which are being put into his hands, and that he will see to it that the community at large is safeguarded in every possible way.
I should not have risen to speak but for the speech made by the hon. and gallant member for Epsom (Sir A. Southby). He is, of course, entitled to his own opinion, and I do not wish in any way to attack him personally. But it would be unfortunate if his opinion went forth as representing the view of the Conservative party. I fundamentally disagree with it.
On what possible grounds does the right hon. Gentleman suggest that I have ever arrogated to myself the representation of the Conservative party? Indeed, if that were so I might well represent it a great deal better than he does.
I am sorry that the hon. and gallant Member should have taken exception to a remark which I should have thought was unexceptionable. The hon. and gallant Member spoke with his usual energy and eloquence, and put a certain aspect, and I, with great humility, rose to submit that that was not the view of the Conservative party. I am sorry if the hon. and gallant Member should object to my having said so. All I said was that as he made his speech in opposition to the Government, I, as a supporter of the Government, seemed entitled to reply to it. But that is not my only reason for rising. He is really in opposition to the views which have been expressed by supporters of the Government in all parts of the House, including my right hon. Friend on the Opposition Bench. While some hon. Members may object to the manner and method in which this Bill has been introduced, none is in favour of the views brought forward by the hon. and gallant Member for Epsom. It is a very serious view which he has put forward. He suggested that in the zones which will become fighting zones—that is to say, where the ordinary process of our civilian life in ordinary times will not operate—the military courts or the ordinary courts-martial should deal with offences committed. I do not think anyone else on either side of the House is in favour of that point of view.
If the right hon. Gentleman will allow me, I think I made it quite definite, and I think it is a view shared by a good many hon. Members that in the fighting areas the military commanders should have the right to certify that no civil court of any kind should function, and then we should have the right to try civilians in a field court-martial in the back areas of these invaded zones.
All that I say is that that is not the view of the Government. I know that the hon. and learned Member put forward a slightly different view, but I did not gather that that was his view. There may be circumstances in which it is impossible for the courts set up under this Bill to act. I should have thought it most serious that it should go forth in the House of Commons that in what may be the fighting zones, in areas where the ordinary civil process does not go on, the best form of dealing with serious offences was by the ordinary courts-martial.
I am sure the Noble Lord would not wish to misrepresent what I said in my speech. He should go on and quote what I said, namely, that if the Government are going to set up special courts, the whole procedure should be embodied in a Bill to be brought before this House.
That is a different point, and, there, to a certain extent, I sympathise with the hon. and gallant Member. I am not concerned with defending the manner and method in which this Bill has been introduced; but I should have thought that one thing was abundantly clear. As I understood the right hon. Gentleman, it was highly desirable that to deal with certain very serious civilian offences special courts should be set up, having some of the characteristics of courts-martial, but not being courts-martial in the ordinary sense. As I understand it, the very essence of the Bill is that special courts are to be set up with highly qualified persons of judicial standing
The right hon. Gentleman has told us that that would be the case, but I am not defending the manner and the way in which the Bill has been brought to us. They were special courts having some of the attributes of courts-martial, but with a high judicial authority set over them. I should have thought that was a better way of dealing with it, rather than to hand it over to a court-martial. A great many of us in the Forces during the last war who had no previous legal experience sat on courts-martial. I do not wish to say anything against them in their method of dealing with military offences. I think the British court-martial system is a very fair one, but I do not think it is appropriate to deal with the kind of offences visualised in the right hon. Gentleman's speech. I think it is much better to set up special courts. I agree that it would probably have been better if the matter had been more clearly explained in the first instance. The right hon. Gentleman met the point of view put forward from these benches in regard to having reasonable time to consider any Amendments which might be put down, and also for the purpose of consultation between him and those representatives of opinion in other parts of the House. I think it is a happy example of the way in which we now do business in this House, when the ordinary party system is abolished.
I would repeat the point which I have already made. I say that the urgency of this matter is very great indeed. It may be a question of hours, and therefore those in favour of the general principle of the Bill must co-operate to the utmost of their ability and help the Minister to get it through, at least before the House adjourns on Thursday next, otherwise we shall be in the position that, if the emergency occurs, things may happen as a result of the absence of this Bill, which afterwards will be greatly regretted. As far as public opinion outside this House is concerned, it is determined to see that justice is meted out, and very quickly, to any Quislings. It does not want to hear of telephone wires being cut or anything of that kind. Therefore, we are not in any disagreement on either side of the House on this, but only on the manner in which it should be done, and I suggest that the Home Secretary's proposal is a good one.
Everybody is in agreement that the country is prepared now to give the Government whatever powers they need in order to deal with the kind of situation which they envisage. The criticism of the House as a whole which is directed to this Measure is not that the Government ought not to have whatever powers are necessary, but that it is sought in this Bill to give undefined and wide powers which are far wider, if one is to judge by the speech of the Home Secretary, than the Home Secretary himself desires. Something has been said about urgency, and it has been urged that we should pass this Bill at once because no one knows when the emergency which it is desired to meet may be upon us. Would it not have been preferable for that very reason for the Government to have come to the House with a Bill which defined the powers they wanted, and said to the House, "Give us these powers now, pass the Bill through all its stages now, and we are telling you exactly what powers we require."? At the end of to-day's Debate the Ministers would have gone back to their Departments armed with every one of the powers for which the Home Secretary pleaded. That would not have delayed giving the Government power. They would, by that means, have got their powers more quickly than they will get them under this Bill. When it is said that the country is prepared to give the Government full powers, I hope no one supposes that the House or the country is prepared, unless far better reason is given than has so far been advanced, to make the death penalty applicable by what is virtually a one-man court under a regulation which is not before us and for an offence which is not yet specified.
The speech of the Home Secretary was meant, I think, to convey the extent to which the powers sought by this Bill are intended to be used. He presented his argument in that spirit. One is entitled to infer that the powers in the speech of the Home Secretary, as distinct from the powers contained in the Bill, are what the Government think are necessary. It may be said that as the situation develops it may be found, as has been found under previous emergency legislation, that new circumstances not contemplated have arisen requiring further amending legislation. If that were the case, the Government's experience since 3rd September last must be sufficient to convince them that all they would have to do in those circumstances would be to come to the House with a Bill containing what further powers were necessary, and they would have got them from the House without difficulty and in shorter time than regulations require.
Something has been said about courts-martial. It is not often that I find myself in complete agreement with the hon. and gallant Member for Epsom (Sir A. Southby). This is the only occasion on which I have found myself in complete agreement with every argument in his speech. When we find such an unaccustomed conjunction
of opposites it may be that each of us has independently stumbled upon the truth. What are these special courts? What law are they to administer? The Bill does not say. The Home Secretary spoke of offences. Offences against what? Offences against existing regulations and against future regulations of which we as yet know nothing? Offences against the present criminal law? Will the courts have power to punish anything which in their opinion may be wrong or undesirable? There is nothing in the Bill to say. The real offence which this Bill does to the conscience of the House is that under it it will be possible to make regulations by which every safeguard that the citizen of this country has ever had against arbitrary action by the Executive is removed without possibility of amendment in the House.
I would not like at the moment to engage in an argument with the Attorney-General on the meaning of the word "offender." He and I have recently been involved in an argument elsewhere as to what it means. Assuming he is right—and I am by no means convinced—that an offender is a man who commits an offence, the offence is not defined. It is not against what regulation or what law he is an offender. Suppose the right hon. and learned Gentleman is right, is he really advising the House to be content with that? Suppose that on some ultimate analysis of the meaning of the word it should turn out to mean that the offences must be those against existing or future law, is it sufficiently certain for the House to be asked to take that risk? I should have thought not.
It would have been in every way preferable for the Government, if they thought that special courts were necessary in certain circumstances to have special powers to administer special laws in special ways, to have come to the House with a Bill defining the constitution of the courts, the offences, its powers and
mode of procedure, and ask the House for authority. I have no enthusiasm for what is misnamed martial law, for that means no law at all, but I would infinitely prefer that the present Common Law power to which the Home Secretary referred should be applied, with the ultimate sanctions which it involves, than that the Government should seek by a Bill of this kind to give the stamp of legislative authority to a court which is really only the same thing as a drumhead court-martial so far as its powers are limited by this Bill. Even under martial law there is a well-defined power of review. The court-martial is not a one-man court, and even when its decisions are given there are authorities in the background who normally review them. In this Bill that review and all review go. Clause 1, Sub-section (2), makes provision for
the apprehension and punishment of offenders and for their trial by such courts and in accordance with such procedure as may be provided for by the regulations, and for the proceedings of such courts being subject to no review or to such review as may be so provided for.
That is to say, regulations which are not before us. Even the machinery whereby decisions of a court-martial are reviewed by quasi-judicial military authorities goes under this Bill, and there is no review at all. It is true, as the hon. and learned Member for the West Derby Division of Liverpool (Mr. Fyfe) said, that an officer presiding over a court-martial might find himself after the emergency subject to processes in the courts under the Metropolitan law. He might even find himself charged with murder if he had ordered a person to be shot. I suppose that the court before which he was tried would give the fullest weight to the emergency under which he had acted. The House of Commons would, no doubt, as on previous occasions it has never hesitated to do, pass an Act of Indemnity covering such things, as it did after the last war. All these things have to be taken into account, but ultimately it is right and proper that a military officer, compelled by the emergency of the moment to constitute himself a judge of life and liberty, should have the consciousness in his mind that the time would come when he would be called upon by the civil law to answer for what he has done and to accept responsibility. That is a very proper and sufficient sanction.
I appeal to the Home Secretary not to persist in the course he has taken. It would be in every way better from the point of view both of speed of procedure and unity in the country if he were to withdraw the Bill and to choose some necessarily early time to put into a Bill the regulations which he requires, and which no doubt exist now in his office, and say to the House that these are the powers which he requires, and we will give them to him.
I should like to reinforce what my hon. and gallant Friend the Member for Epsom (Sir A. Southby) said, even at the risk of offending the orthodoxy of my Noble Friend the Member for Horsham (Earl Winterton). This is a bad Bill, and I hope that the Home Secretary will act on the advice which has been given to him by a number of Members to-day—withdraw it and bring in another Bill which will set out fully what his intentions and desires are. The House of Commons in its present mood will give him everything he wants and more, but this Bill, which is clearly a compromise Measure, is really only a halfway step to martial law. It completely overlooks the fact that in a country the size of this one, one cannot envisage a state of warfare which will be so static that we shall be able to divide it into safe and unsafe areas. The warfare may shift about from hour to hour and from day to day, and it is impossible to say that military courts shall operate in the war zone, that behind that zone there will be special courts, and behind that the normal processes of civil law. The thing does not make sense in a country the size of ours. It might work in France or in the United States, but here, let me assure my right hon. Friend from my own recent experiences, the thing is impossible.
Warfare to-day moves at such a rate that you cannot be certain to-day that there may not be an entirely different state of affairs in another part of the country to-morrow—I do not say an effective occupation, but such occupation as would dislocate all your processes of law and everything else. I wish that my right hon. Friend would reconsider the matter from that point of view and take advice about it from his military advisers.
What is the objection to having court-martial procedure? Here we are proposing to set up a court of a type which is quite unknown to this country and is regarded with, I think, quite justifiable suspicion by a number of my hon. Friends. It does not approximate to anything that we have or to anything which a military court does. What is the objection to having ordinary court-martial procedure, with all sorts of safeguards attached to it, to operate in areas which are declared to be areas in which it ought to operate?
Let us consider for a moment what a court-martial does to-day. There is a great deal of misapprehension about it in the minds of some of the right hon. Members of the Government. To-day a court-martial usually consists of about 90 per cent. of civilians. It is not full of bloodthirsty, ravening soldiers, because in the present state of the Army, with the number of reservists and others who are in its ranks, practically nobody in the court is a regular soldier at all, and nearly all have healthy civilian backgrounds; so there is not any very serious danger of the military trampling on civilian rights. Let me suggest this to my right hon. Friend as being of possible assistance to him. Let us assume that he is going to get one of those notable individuals of judicial rank to occupy a position in the special court. Suppose you take an ex-service High Court Judge and say to him, "You shall revise the proceedings of a court-martial and you shall advise the general who has to confirm its findings whether you think they ought to be confirmed or not, particularly in cases where the death penalty has to be imposed." Then you would have your ordinary field general court-martial presided over by an experienced brigadier who was quite accustomed to trying military offences. Let me remind my right hon. Friend that the type of offence he has mentioned this afternoon can frequently be encountered in a military court. After all, the cutting of telegraph wires or the forcing of a safeguard are not such unusual military offences that an ordinary court-martial could not be trusted to deal with them.
Under Section 41 of the Army Act specific power is given to the ordinary court-martial to deal with civil offences committed by persons subject to military law. Courts-martial are sitting every day in this country—and they even sat in France—at which people are tried for offences which are known to be offences under the civil law and not under the military law, and nobody has ever complained of the verdicts which have been arrived at by those courts—no, I do not think even the accused, because everybody in this House has testified to the fairness which is always shown by a court-martial. After all, a court-martial is frequently assisted by a Judge Advocate, who understands the law. I hope that my right hon. Friend, in view of what I have just said, will seriously reconsider whether he should set up this special type of court at all, and whether he will not substitute for it a perfectly straightforward court-martial, laying down certain regulations as to the type of offence that a court-martial is to deal with in certain circumstances. If he can do that, I think he will satisfy a great number of Members in this House. He may say that the matter is urgent, but I would like to remind him that he has been told that it is urgent for days, or even weeks; and even though it is very urgent, should we do something quite wrong to-day because something can happen to-night or to-morrow? It would be quite wrong to do it in this slapdash, off-hand way.
I hope that my right hon. Friend can assure the House that the ordinary Common Law right to declare martial law still exists. If it does still exist, then under cover of that right and behind its protection we can proceed to hammer out something which will be more satisfactory than martial law, and we shall know that if the worst came to the worst we could have martial law straight away and that everybody would be safeguarded. I hope my right hon. Friend will be able to tell us that nothing in the Bill takes away the inherent right of the Commander-in-Chief to declare martial law. I should like to know about that, because it is a serious matter, and might be crippling and hampering to the military authorities. I hope the Attorney-General will reassure me that that inherent right to declare martial law in an emergency is still within the hands of the Commander-in-Chief.
There is one other aspect of the Bill with which I wish to deal. I asked the Home Secretary, in an interjection at the end of his speech, who was to be the judge of when and where the military situation is such as to require the institution of these special courts, and I understood him to say that he was to be the person, that he would advice the Government and that on his advice the Government would act. But with all the genius which the Home Secretary has, how can he be the judge of the military situation? Must not the question of the military situation and its requirements depend entirely on what the commander-in-chief thinks? Might we not get a state of affairs where the commander-in-chief could say, "I want this special court set up" and the Home Secretary might say in effect, "I do not think the military situation justifies it and I do not propose to do it."? That is not an impossible situation. I hope the House will not think that is a ridiculous idea, because this is a very important power, and quite clearly the Home Secretary is a little nervous of it; and if he is nervous of it now he might be more nervous of it later when the emergency actually arose and the demand came. I hope he will reassure us about that and say that he undertakes to accept the view of the commander-in-chief as to the military situation and its requirements. If not, why put in the words "military situation" at all?
Regulations are to be made, and some of the regulations are to be regulations under this Bill and some of them are not. Has my right hon. Friend really considered where that will lead? We are to have regulations made under the Bill and acted upon by these special courts, and some of the other regulations which he has mentioned which are not made under this Bill will be administered by two lots of courts—by the special courts and by the ordinary courts. I think I am not misrepresenting what he told us. If the regulations dealing with the cutting of telegraph wires are special regulations to be made, not under this Bill but as extensions of the presence Defence Regulations, they will be administered—
I hope that my right hon. and learned Friend will not be too condescending with me. I was only referring to those which the Home Secretary told us he was proposing to bring in.
I mentioned two regulations which might have to be made. When those regulations have been made they will be in exactly the same position as any of the other regulations made under the Defence Regulations. They will have nothing in them to show that they are to be administered by this court or that court, but will take their place in the code of regulations, and so long as they remain in force will be administered by the courts dispensing justice for the time being.
That is precisely the point that I am making, that they will be adminstered by the special courts as well as by the ordinary courts, and cannot the right hon. Gentleman see that if they are administered by two sorts of courts, very different penalties will be enforced in different parts of the country? Cannot he see that in certain circumstances where a special court is dealing with a breach of a particular regulation very serious consequences may follow, whereas in other parts of the country the same penalties will not be applied? I think I have made that clear to some hon. Members, if it is not obvious to the Home Secretary. I do hope that in the circumstances the Home Secretary will withdraw the Bill and give us another, that he will not have any half-way house to martial law, but have ordinary courts or martial courts presided over by any competent persons whom he likes to mention, and who could easily be put into uniform for the purpose or who could advise the confirming officer, and that he will not have a third middle court which does not seem to fulfil any of our requirements.
Before I come to my main argument may I make one remark in regard to what the Minister said about the regulations which he proposed to make? He said they would apply both to England and Scotland. I hope he will keep in mind the great difference between the criminal systems in Scotland and England, when framing the regulations, because otherwise they will be completely unsuitable to one or other of the two countries. The Debate, which has been an extremely interesting one, has shown, I feel, the complete confidence of all Members of the House in the ordinary courts of the country. It has been evident that every one wanted to see the ordinary courts function so far as possible, but, unfortunately, that is not the situation we have to contemplate to-day. It is not an alternative between the ordinary civil courts and the courts proposed by the Minister, but is a difference between the courts proposed by the Minister and military courts. In the emergency which we all anticipate it is obvious that the civil courts cannot possibly manage to function at all, they are completely out of the question, and the only thing we have to consider is whether it is better to have a military court or to have the court which the Minister has suggested.
I think the desire of the Minister to introduce something in the nature of a compromise court—a compromise between the ordinary oivil court and a military court—is admirable, but personally I question very much whether such a compromise court would work in a grave emergency, and I ask the Minister carefully to consider whether his proposals might not lead to very grave difficulties. Clause 1 of the Bill makes provision for the Minister taking action
where the military situation is such as to require the institution of special courts.
The Minister said that he would consult various people before he decided whether the emergency had arisen. Frankly, I cannot imagine such a thing happening if a real emergency did arise. What the recent campaign in France has shown beyond anything is the speed with which it is necessary to act. It seems to me that it will be very dangerous if we have behind the lines sniping of artillery, as has happened in France, people communicating with the enemy by wireless and by signals, and looting. While all this is going on, the military are supposed to stand by—as I do not expect they would be able to do—while the Minister consults various authorities.
I am glad to have that assurance that the right hon. Gentleman will not consult with someone before he decides that the situation requires one of these special courts, but he made it clear that the special courts are to apply only to areas in which an emergency has arisen, though it has been made abundantly clear during the Debate that you cannot possibly hope to specify such areas. At least, in France, by the time you had set up the court in one area the emergency would have developed in some other area. There is a good deal in what has been said on various sides of the House as to its being better to leave the ordinary civil law to function where there is peace and quiet or after the emergency has passed, and to let the soldiers act by the ordinary military courts where the emergency does exist. In any case, I am afraid that, if there were a critical emergency, the soldiers would act, and you might have the extraordinary result of some special court attempting to function 40 or 50 miles away from the danger zone while military commanders in the emergency areas felt that they had to act on their own. I ask the Minister seriously to consider withdrawing the Bill and to allow the ordinary military court to function in the area where an emergency had arisen and for so long only as such emergency continued and for the ordinary civil courts to continue to function elsewhere. Otherwise there is a danger of confusion arising between the special courts and the military courts which might require to be constituted.
The Debate has shown a great deal of uncertainty in the minds of hon. Members, but I feel that the Minister has met us as fairly as he can. No doubt this Bill is a compromise, always a difficult thing to justify. The whole House sympathises with the right hon. Gentleman, because they recognise that the original emergency regulations were made at a time when we did not contemplate invasion of this island, and it is clear that amending legislation is necessary. It is clear also that the Regional Commissioners, and the complicated arrangements set up before, must also be taken into account. The real trouble is that, in this island, we may have so many cooks that we do not know what sort of broth we are going to get, and there may be a certain amount of confusion, which is to be deprecated. I understand that the purpose of this system is to set up courts to satisfy the civilian population that they will have a fair trial, but I would ask my right hon. Friend some very simple questions on this matter. I understand that nothing in the Bill prevents a commander-in-chief having the right to declare martial law in the area where the country is in serious danger, and therefore to overrule completely the civil authority. Otherwise, under the exigencies of action and battle, it will be impossible for a commander-in-chief to ensure the safety of the troops. If he had not these powers, action would undoubtedly be taken without any semblance of a court. Therefore, freedom of action by commanders-in-chief is not interfered with by the Bill.
I believe that these powers were wanted many weeks ago, and I should not be surprised to learn that it has been pressed on the Government by the military authorities for many weeks. It may be argued that the thought of brutal and licentious soldiery is still so uppermost in the minds of many people that it must have attention in this House, but I agree that the composition of the Army to-day is such that a court-martial is one of the fairest tribunals you could have. The objection to them is that you do not want to detach officers for such duties when they are far better employed in other and more active work. Those who know anything about conditions in the defence of this country agree that nothing should detract the officer who is training people from the paramount duty of training.
I do net think that by dressing a man in a uniform we necessarily make him a better to lawyer or a better judge. [Laughter.] I do not impute anything against the hon. and gallant Gentleman who interrupted, because I know that he is doing admirable service in this country. The question of the employment of officers is of very great importance. This Kingdom has always been divided into areas, each under an area commander. In a rapidly moving situation that organisation is the only static thing that exists. The area commander has got to know everybody in the area and is in a position to ascertain who can assist in these matters. I hope that something will be done to make it possible for the area commander to be the competent military authority, acting through the commander-in-chief, to set up courts and obtain people to form them. It will be found impossible to look upon this country as if it were a vast prairie. It is a very small island. We have heard talk about a battle zone, an intermediary zone and a peaceful zone, but that appears to me to be carrying things to the verge of the ridiculous. In a small island like this you will have the risk of people popping into this area or popping out of that area. German agents will learn to know the lines of demarcation, and we may be sure that they will play up well in regard to coming under this, that or the other court.
What is necessary is to have courts which have the confidence of the people. Many of us feel that if the death penalty has to be inflicted the only satisfaction is that, somebody having been executed for the crime, other people will be deterred. It is no satisfaction to execute people unless notice is taken by others who might otherwise commit the same offences. I think action should be taken by the special court and sentence promulgated at once, so that everybody in the district may know what warfare means.
My last point is that some areas of Regional Commissioners are brought into no less than three military commands. Some of them have little bits that stick out into other areas. I do not think that the control areas are meant to go into the military commands. If these districts are all different, we must avoid anything in regard to courts which will add to the confusion. I beg, therefore, that the military zones, which are well recognised and conform to county districts, should become the areas for the competent authority.
None of us knows exactly when these courts will have to function, and it is the duty of the Government to see that the commander-in-chief and the military advisers of the Government obtain the powers which they feel are necessary, but it is equally our duty to see that the Executive do not take away the liberties of the individual without this House knowing about it. This Debate has been thoroughly justified, and I hope that the right hon. Gentleman will carry out his promise and give us the assurance that, when the Committee stage is over, the Bill will be passed through its remaining stages with celerity. We take a very great responsibility if we delay something which the advisers of the Executive believe to be necessary.
It is agreed on all sides that none of us wish by any word of ours to delay action which is really necessary in the interests of the country, but it is equally true that the House of Commons, which has stood for law and the sanctity of law through many difficult times, should at a time like this, a time of great national difficulty, be very careful about any emergency legislation that is passed, to see that it may not infringe upon those things on which our national life is built. It is very significant that from all sides this afternoon hon. Members agreed that the Bill, as drafted, is unsatisfactory. We are all grateful for the spirit shown by the Minister and the promise which he has given to consider Amendments and, in one case, to move an Amendment himself. The Bill is so widely framed and vaguely worded that although the Home Secretary says he wishes to make use of the powers which it confers for a very limited purpose, it would give power to another Home Secretary or another Government to make use of the authority thus conferred in a way which he does not for a moment himself contemplate.
We must bear in mind the effect which the Clauses of the Bill might have under very different conditions. There is nothing in the Bill defining the period during which these special courts will act. The Home Secretary made it clear that it was only intended they should act during this period of special emergency, and I think we must all gladly accept that explanation on his part. But this Bill will be read as one with the earlier Act. It would be possible for that Act to be prolonged from year to year, and it may very well continue for many months after the conclusion of the war, as indeed was the case in connection with the last war, when the Defence of the Realm Act continued to operate after the war was over. The powers conferred in this Bill might be used by a different Government after the close of the war in a way which the Home Secretary does not for a moment contemplate or intend. We should ask him to consider inserting into the text of the Bill some words which will define his intention, that these special courts are to act only during the period of special emergency connected with intended invasion.
I regret that the Bill is not franker in its phrasing. Why should not the Bill state that its provisions can be used only in the event of an invasion by an hostile force? The general theory of drafting a Bill to-day is not to call a spade a spade but to call it "one of a number of agricultural implements which may be defined by an Order-in-Council under this Act." The Minister means a spade, but his successors could use the term for a plough or a harrow, or even a trowel. We need to see that the wording of the Measure corresponds with the intention of the Minister as explained to Parliament, and that it cannot be used in a way quite contrary to his intention, not by him indeed, but possibly by some other Minister. We have to bear in mind, too, that in spite of what has been said by one or two learned and gallant Members about the great value of courts-martial, there is not only throughout the country a dread of a general extension of martial law, but there is a great tradition which this House has to maintain in resisting the extension of martial law. It is one of the foundations of our liberty which was secured in the Petition of Rights in 1628, when martial law was declared to be illegal, and that declaratory Act was approved by King Charles I. Although it has been said this afternoon that martial law is fairer and juster in many cases than Common Law, we ought to remember the opinion of a great Lord Chief Justice who lived through the Civil War for part of his active life and knew all the horror of war in his own country. I refer to Sir Matthew Hale. He, speaking of martial law, wrote these words:
Touching the business of martial law these things are to be observed. First, that in truth and reality it is not a law, but something indulged rather than allowed as a law. The necessity of government, order and discipline in an Army is that only which can give those laws a countenance, quod enim necessitas cogit defendi. Secondly, this indulged law was only to extend to members of the Army or those of the opposite Army and never was so much indulged as intended to be executed or exercised upon others. For others who had not listed under the Army had no colour or reason to be bound by military constitutions, applicable only to the Army, whereof they were not parts. But they were to be ordered and governed according to the laws to which they were subject, though it were in time of war.
Those words were uttered by a great Lord Chief Justice who had gone through Civil War in his own country, and he maintained that view of martial law. I hope that view will be maintained by this House, that where it is necessary for military authorities to act in an emergency, the House may deal will the position subsequently by an Act of Indemnity and not suspend the ordinary law, which is the great bulwark of our liberty. We have deplored the way in which, across the water, the Constitution of the great French Republic has been abrogated, under the very forms of the Constitution itself, in a couple of days. We need, therefore, in this country to see that we do not, under the forms of law, take any steps which might be used, not by this Government, but by some Government when that law has become an Act, to destroy the foundation of law itself. It is a great part of our heritage that law and freedom are interwoven, and we cannot touch one without endangering the other.
It seems to me that the main lines of the criticism of the Government have now emerged in the course of the Debate, and hon. Members who have been here all the time will, I think, agree that the Debate has served a very useful purpose indeed. I started off this afternoon feeling 100 per cent. hostile to the Home Secretary, but after listening to some hon. Members I am almost converted to his support. Apparently, many hon. Members would prefer to see a general system of martial law operating in this country in the near future. That is not the view of many of my hon. Friends on these benches, and I am certain that it is not the view of the large majority of the country. We do not desire to see the civilian population in this country put under the jurisdiction of the military authorities. That is not to say that we want to withhold from the Army the powers they need to discharge their duties. We want them to discharge their duties, but it has been disclosed in the Debate that you cannot in fact make a distinction between an area where hostilities are proceeding and the rest of the country. The point was raised by one hon. and gallant Member—and, indeed, I was going to submit it myself—that it is fantastic nonsense to speak of an invasion by an enemy temporarily occupying a part of this island as an invading force, and the ordinary processes of justice proceeding in any other part of the country. Some hon. Members have said that it is absurd to speak of these zones in which this form of jurisprudence as indicated in the Bill will operate, and that therefore you cannot have these zones. If you cannot have these zones and the ordinary system of jurisprudence, then you cannot have martial law under the ordinary system.
I understood that the hon. Gentleman was suggesting that you could not have any division into zones at all, because it had been argued by other hon. Members that you could not have three. The earlier argument had been that there was not room in this island for an active service zone with courts-martial, a back war area with these new tribunals, and a peaceful zone with normal courts. That was the argument. I dare say the argument against having two zones may be good, but the argument against the possibility of three zones does not dispose of the argument that you might have two.
I do not understand now why the hon. Member has interrupted me, because the point I was striving to make was this: The same argument that has been advanced and accepted by everybody, that the island is too small to have a portion of it ruptured without affecting the whole of it, applies to two and three zones—that you must have throughout the country one modified system of justice to deal with a condition of emergency. Where the military authorities see citizens behaving in a manner which will interfere with their own operations they will take action out of court. The point was made of a man being seen cutting telegraph wires communicating with headquarters; a soldier would not tap him lightly on the shoulder and say, "You are under arrest" so that he would be allowed to cut all the wires he wanted. I should say they would shoot him in the course of cutting the wire. That would be their job, in order to stop him doing it. The military authorities would take whatever action was necessary in their own area to discharge their military duties in that area.
The point was made with force by the hon. Baronet opposite that it was absurd in circumstances of this kind for officers of the Army to be taken from their duties and to have to attend courts-martial. The duty of the military authority in those circumstances, once having seized the offender, is not to pass him behind to another judicial authority but to pass him out of the way so that they can go on with their job. Then he passes out from that area. What he does is not to enter another judicial area but to reach a place where it is peaceful enough to try him.
The hon. Member has come to an important point. Suppose that the person who cuts the telegraph wires is seen by the wife of a farmer who is still in the area leaving the spot where the telegraph wires are cut, but is not seen actually cutting them. He is caught later by a sapper, and found by the sapper's officer and a sergeant to have the pliers on him. That is a case where the evidence is circumstantial, but strong. As I understand the hon. Gentleman's argument, the man would be sent out of the area, and you would have to detach from the fighting forces an officer, a sergeant and a sapper in order that they might give evidence, or else you would have to postpone the trial, so that it would not have the deterrent effect of speedy justice.
The same thing would apply in the case of a court-martial. The men would not be sent out of the area, but they would have to be taken from their duties in order to give evidence.
The court-martial would be held on the spot within an hour or two, and it would only require three men being away from their duties for a few hours, and never leaving the spot.
If it is possible for a court to be held in that zone—and I should imagine that it would be very difficult—the particular kind of court envisaged by the Bill could be held in that area, so the same argument would apply. The point that I am making is that in practical administration the military authorities should not be obstructed in doing their job by having to hold courts at all. They should pass prisoners on to courts further back, where they could be dealt with by judicial authorities set up for that purpose. Hon. Members who have spoken have muddled the thing up, because they have established the fact, which everyone knew, that you cannot speak of zones, and yet they imagine such a condition of stalemate between ourselves and the enemy that it would be possible to hold a series of courts-martial in the areas where operations were going on. That is a wholly unrealistic picture of the circumstances that we have to face. I regret that the right hon. Gentleman has not faced the fact that we shall require a modification of the normal processes of justice in this country, all over the country, if an invasion takes place. The question is, what are those modifications to be? The criticism against the Bill is that it does not face that question, and does not enable hon. Members to make their suggestions as to what the modifications should be. The right hon. Gentleman should bring in a Bill which sets out quite clearly such modifications.
If the hon. Member's argument is logical, would he not suggest that in France, both in this war and in the last war, a system of martial law should have prevailed not only in areas which were occupied by the enemy or where there was fighting in progress, but in Paris and Bordeaux as well?
The answer must be a purely empirical one. You have to make a distinction between a large land mass like France and a comparatively small island like Britain. If a landing is made in this country, everything will be disturbed in a very wide area. I submit that in practice what will happen is a modification of our system of justice, all over the country. The question of invasion is irrelevant to the Bill. There is nothing in the Bill about invasion. This new system is to be brought into operation when the Executive think it desirable. The Executive will think it desirable, all over the country, if an effective landing is made in any part of the country. We can reach one or two reasonable conclusions. In the first place, it is absurd to speak about zoning the country. In the second place, it is repugnant to this House, and to the country as a whole, that there should be general courts-martial. Thirdly, there should be a modification of our system of justice in order to deal with the emergency that might lie immediately ahead, and that modification ought to come before the House in the form of a Bill, and not in the form of regulations, as is suggested. Consequently, the right hon. Gentleman would, I believe, be meeting the wishes of the House and of the country if he withdrew this Bill and introduced immediately Bill of a more elaborate kind.
It may be suggested that there is not time. The answer has aready been made. This contingency has been seen coming for two months. The Executive have had all that time, and it is extremely unfair to ask the House of Commons to discharge its duty in a hurry in this way when the Executive themselves have been so dilatory. If in the next few days an emergency does arise, there is sufficient provision under the existing law to deal with it. There is no reason why we should be rushed into legislation which is so repugnant to our instincts and to the desires of the country. I hope that the Government will not think that our opposition is captious, that we are making it for the sake of making it. We are very anxious to carry the Government with us in this matter, and I am sure that they are anxious to carry the House with them. It would be most unfortunate if they insisted upon the Second Reading being carried to-day and then had a Committee stage—because the Home Secretary has promised the House of Commons a Committee stage as though it were a concession—and then we had so many Amendments down, in order to try to make the Bill workable and agreeable, that it would take far longer than if the Home Secretary had taken the Bill back and, after consultations, had brought in a Bill that would meet our wishes. I hope that the Home Secretary will not feel that it would mean any loss of dignity on his part to withdraw this Bill and to bring in a more satisfactory one. It is because we see the need for modifications in the whole of our system of justice that we
ask him to bring in such a Bill, and we will help to make such a Bill a workable Measure.
Every hon. Member who has spoken has agreed upon one point, namely, that the time may come, and may come quite soon, when our ordinary civil courts will be unable to function. At such a time, I think the House will agree that the preservation of order and the speedy bringing to justice of offenders is a matter of urgent importance. At the present time the sole means of dealing with such a situation is to make use of the Common Law right which is vested in the Crown and exercised by the servants of the Crown to impose martial law.
The Bill which is introduced to-day aims, in itself and by the regulations which may be made under it, at providing another means for dealing with such an emergency when our ordinary courts cannot function. With that object, I imagine, the House in the main will be in agreement, but as to certain of the matters under the Bill doubts occur to me which I desire to put forward. The first is in regard to the nature of the regulations which may be made under the Bill. My right hon. Friend the Minister for Home Security has assured the House that the regulations will be placed before us, and I have no doubt at all that they will be most carefully considered, but before they are finally drawn I would ask my right hon. Friend to consider two points. The first is the propriety of preserving to the military commander the right to try an offender in what has been called the war zone if it is inconvenient or impracticable to convey him from that zone into the back area where a special court may be functioning. The second point which I ask him to consider in drawing up the regulations is again the propriety of preserving to the military commander the power to make special offences which the particular area may require. It must be obvious to those with knowledge of these matters from the point of view of military operations that special regulations may be required, such as a curfew or restriction of the movements of civilians which must be made at once by the military commander, who is in full possession of the needs of the military operations which he is himself conducting.
The second point which I desire to ventilate with regard to this Bill has already been mentioned by more than one hon. Member, but I would mention it again. In Sub-section (1) of Clause 1 of the Bill it is provided that the power to set up these special courts shall come into being where the military situation is such as to require the institution of such special courts. I have no doubt at all that my right hon. Friend would consult the military commanders before determining when such a situation had arisen, but I would ask him to consider whether it would not be right perhaps to formulate some Amendment which would not place upon him that very onerous responsibility; for, surely, in considering whether the military situation is such as to require special courts, those in charge of military operations are the best persons to judge of the situation.
Finally, I desire to ask this specific question, either of my right hon. Friend or possibly of my right hon. and learned Friend the Attorney-General. Will the Bill, if it becomes an Act, impinge upon the Common-Law right in a military commander to impose what we call martial law? I ask him to assure the House that it does not encroach upon those powers. I am well aware—and the views of hon. Members to-day have made it perfectly clear—that many people are frightened and alarmed by the term "martial law," and I confess that I attribute that alarm chiefly to ignorance of what martial law really means. There has been to-day some confusion in regard to three phrases—"military law," "courts-martial" and "martial law." The position is that military law governs the soldier, and the soldier alone is subject to the jurisdiction of courts-martial, but that is entirely a different matter from martial law, which is the suspension of ordinary law and its supersession by military rule carried out by a military commander who is charged with the restoration of order. Some people appear to think that martial law involves squads of soldiery promiscuously shooting people down at street corners. The slightest investigation into the matter shows that nothing is further from the truth, because under martial law I think it is right to say that while justice must be speedy and effective, it is certainly not rough and ready. Powers which are exercised by a military commander under martial law involve the setting up of proper courts, a summary court consisting of a senior officer to deal with the lesser offences, and a military court consisting of three senior officers, one at least of them with legal qualifications, to try the more serious offences, and it would be a disaster if that right in these difficult and dangerous times were removed from those in charge of military operations.
I not only suggest, but I submit as a matter of law that the right of a military commander to impose martial law in certain circumstances remains, and that is why I asked for an assurance from my right hon. Friend. I was endeavouring to explain something of the working of martial law, and in my submission it is very much misunderstood. Surely the hon. Member for Ebbw Vale (Mr. Bevan), who has just interpolated an observation, will know that in the most dangerous places, in France and elsewhere, field general courts-martial are generally accepted as being extremely fair tribunals. In these days there is no doubt that the one object uppermost in the minds of every Member is the successful prosecution of the war. To that end we must be prepared to meet every contingency, and in my submission people must be prepared to face such a contingency as would arise if the ordinary and, perhaps, sometimes rather leisurely, civil tribunals could no longer function. I would ask my right hon. Friend to give such consideration as he thinks right to the comments I have made on the Bill, and the regulations proposed to be made thereunder, and I further ask for an assurance from him or the Attorney-General that the right of a military commander to impose martial law if circumstances warrant it is not removed by any Clause in this Bill.
It appears to me that there are three points of view in connection with this Bill.
There are the Government point of view; the point of view expressed by the hon. and gallant Member who preceded me and those who agreed with him; and the point of view that, while modification will be necessary in the circumstances contemplated, the matter is so serious that the House should have before it a Bill which they would be able to modify and amend. This would not he possible if the Government's views were adopted. There has always been a difficulty with regard to regulations in that the House has not been able to amend them; they have either had to be accepted or rejected en bloc. For my own part, I agree that it would be much better if the Home Secretary would introduce a Bill and put into it what he is contemplating putting into the regulations so that Members on all sides of the House would have an opportunity to give the Government the benefit of their experience and knowledge in helping to make the proposals really effective for the protection of the rights of people. At the same time I recognise that the Home Secretary has made a very plausible case. From my experience of the regulations that have been made, and the administration of the law in this country since the war began, the Home Secretary has in general adopted a very proper and wise point of view. Very often he has been ahead of the House and the judiciary in connection with some questions.
I do not want to be taken as being unduly critical of the Home Secretary in view of the amount of common sense he has shown in carrying out his duties but, at the same time, I feel that if there had been power in the House to amend past regulations, there would have been better administration in the country. I do not agree at all with the point of view that these matters can be left to the wisdom of commanders and military authorities. The hon. Member who preceded me spoke about experiences in France and the wisdom and the justice shown there. Well, I think of the last war and of the experience in Dublin when an eminent Irishman, Mr. Sheehy Skeffington, was sentenced to death, that sentence having been carried out by an officer who was afterwards adjudged to be insane. I do not want anything like that to happen in the course of this war. I certainly agree that if we have to choose between military and civil tribunals, then I am in favour of the proposal of the Government as compared with putting us into the hands of the military authorities. There are many people in uniform who are not at all fitted to act in a judicial capacity, and I would rather see civilian tribunals. It would be better if the procedure were worked out by the House than that we should have to accept the regulations en bloc, as we shall have to do if the Home Secretary's plans go through.
I would like to say to the Home Secretary that I hope that, if his policy is accepted, the civil tribunals will be sound, because there is a great danger in present circumstances of people getting the jitters. This is obvious from what is going on in various parts of the country among people who are acting as magistrates. That they have the jitters is shown by the way they are dealing with certain cases. Powers have been given to the Government, and regulations have been made in order to safeguard the country, but we are now in danger of being nearly as badly off as they are in Germany with regard to what we say to each other. There was a case in the Press a few days ago of a person who expressed the view to another person that Hitler would be here before August. That person, a man of 74, was hauled before a court—
Probably, under the Section under which Mr. Sheehy Skeffington was condemned to death in Dublin during the last war. However, I want to draw the attention of the Home Office to the way in which the jitters have overtaken some magistrates, and how they are seeking to show their patriotism by thinking they have to act in the Hitlerian fashion.
I am sorry if I have gone beyond the bounds of order, but I certainly think, from some of these cases in recent days, it is just as well that a statement should have been made. I hope, if we are to have these civilian tribunals set up, there will be a right of appeal. I know there may be many difficulties in the way, but I certainly think, when you set up a court like this, there should always be an opportunity for a person, who may be condemned to death, to appeal to another tribunal. I hope the Home Secretary will go into the matter again and see whether it is not possible in framing his regulations, to arrange for some central tribunal where all these sentences will be revised by people of judicial experience.
I am also concerned about the fact that the Home Secretary told us that a person might be represented by counsel, if he could get one, or have a prisoner's friend to assist him in his defence. I do not think the prisoner's friend is sufficient. There may be people who come before these courts who have done nothing wrong, but, because of their economic circumstances, they are not able to get legal defence. I know there is provision in the law for legal defence and I want to see, in connection with these tribunals, that a person will not be liable to be sentenced where another person who was able, because of his wealth, to get counsel from some distance to represent him would not have been sentenced. It is a point that needs consideration in making the regulations and I put it before the Home Secretary for his consideration. I have no wish to see an extension of military tribunals. I think it is the business of the military people to carry on their own work and it is for civilians to act as the judges in connection with these cases which may be referred to them.
The last speaker and those who have supported his view, appear to my mind to be living in an unreal world. None of us wants to see the conditions to which they have drawn attention obtain in this country, but surely we must not forget that this Bill is specially designed to deal with conditions in areas which, in certain circumstances, will be theatres of war. It strikes me as being an unfortunate compromise on the part of the Home Office to try to divest the competent authority which will be held responsible for the outcome of the campaign in its particular area, of authority which is absolutely essential if it is to administer the area in the interests of the campaign in question.
Various speakers, including the hon. Member for Ebbw Vale (Mr. Bevan), have suggested that the country is so small that it takes only a few hours to motor from one side to the other and it is impossible to have one area administered by a competent military authority under martial law, while another remains subject to the common law of England. If that is the case, if our country is as small as that, and if this condition of war flows so quickly from one county to another, it will be very unfortunate for us in any attempted invasion. We have to be realists in this matter. We have to realise that it is probable that the enemy will attempt to invade the country, not at any one particular point where a line will be taken up and a part of the country isolated, but that attempted invasions might take place all round the coast, some serious, others with a view to drawing our attention from the more important areas.
In those circumstances, it is impossible to suggest that the military commander should have to consult with the Home Office officials, as he would be bound to do under these regulations, about the establishment of special courts. Time is of the essence of the contract. He has to deal with a case, and he has to deal with the person who is accused, in the best interests of the campaign which he is pursuing. Several Members who, from their speeches, have experience of the Judge Advocate General's Department of the War Office and its administration, have pointed out that a field general court martial in certain cases, can be established immediately without an unnecessarily long summary of evidence being produced under King's Regulations and military law and, if the case is an obvious one, it can be dealt with immediately. But if a death sentence is imposed, it would not be a case of the President of the court-martial having become unbalanced as a result of the state of affairs through which he had passed in recent hours or days, and the man being shot as the result of his decision. Before the decision could be put into effect it would have to be confirmed by the competent military authority of the area. I do not recall the circumstances to which the hon. Member drew attention, but that would be impossible in present circumstances. [HON. MEMBERS: "Why? "] For this obvious reason. If a field general court-martial is assembled and the death sentence is imposed, before that sentence can be carried out it has to b confirmed by the general commanding the area. It is very unlikely indeed that the general commanding the area would be insane, as the hon. Member suggested. That was the logical conclusion of his argument, and, as far as I could see, it was the only argument that he produced against the powers which it is necessary: for the military authority to wield.
I gave the case. Many Members will remember the Sheehy Skeffington case. When the hon. and gallant Gentleman says the sentence would have to be confirmed, he forgets that the general in command, getting the report from the court-martial, would not know whether the person presiding was insane or not.
I do not think it would be very fruitful to pursue the case which has been mentioned, but I rather wonder whether the War Office are entirely in agreement with this Bill. The Bill must have been the subject of a Cabinet subcommittee, and I think it would be a matter for regret if the views of the military authorities had been over-ridden on this occasion.
May I remind my hon. and gallant Friend that I stated quite emphatically that there was in this matter no conflict of views, and that it did not represent the triumph of one theory over another. The military authorities, the War Office, and the civil authorities are in complete agreement.
I apologise to my right hon. Friend; I must have been out of the Chamber when he stated that. Those circumstances certainly put a different aspect on the case, but let us consider the matter from this point of view. I cannot imagine that in any campaign during the last 100 years, in the theatre where military operations were taking place any Government or any military force, irrespective of its nationality, has ever consented to the establishment of special courts. If my right hon. Friend has any evidence in that respect, I think the House would be interested to hear it. In the last war, during the invasion of Belgium by the German Army, certainly the German Army did not allow any special courts to be set up. When we advanced into Belgium, we were quite content to rely on our military legal procedure to deal with such circumstances as these. I do not recall reading in the newspapers that during the war in Spain either Franco's forces or the Republican forces—particularly the Republican forces, supporting a principle which has many sympathisers in the House—found it practicable in certain circumstances to put military law on one side and to bring in special courts. I submit that this is a Measure which should be re-examined in the light of the realities of the case. Having regard to the fact that we should be fighting an invasion, it would be quite impossible to allow any other authority to interfere in any way with the responsibilities of the competent military authorities.
I hope that the Home Secretary will withdraw the Bill, and not ask us to give it a Second Reading and follow that by making Amendments. I ask him to withdraw the Bill for the sake of a united House and for the sake of speed. The right hon. Gentleman has offered to make certain concessions, but I do not think those concessions go to the root of the matter. He has offered to guarantee that these tribunals really shall be civil, and he has offered to try to define military law rather more carefully. I did not hear him offer to make any concession with regard to the words:
(aa) make provision for the apprehension and punishment of offenders and for their trial by such courts and in accordance with such procedure as may be provided for by the Regulations, and for the proceedings of such courts being subject to no review or to such review as may be so provided for.
I want most seriously to warn the Minister and his colleagues—and I am sure there have been in the House this afternoon several hon. Members who share my point of view—that after the experience of
France and after what we know has been an attempt, which is still afoot, on behalf of some of the Ministers and their servants, with regard to a possible censorship of the Press, the Government cannot get on to the Statute Book a Bill containing these words and maintain the unity of the House. The Minister should think very seriously before pressing the House to vote for or against words of that kind. No assurances which he may give and no professions of his intentions make the least difference. If those words are in the Bill, there are many of us who regard that quite definitely as the beginning of the end, and we shall have to act accordingly. The right hon. Gentleman said that he already has these powers, and that it is only as a matter of great courtesy that he has come to the House. If that be so, I venture to say that the House was at some stage deceived, because if the Minister has power already to set up new courts to arrest anyone for anything and impose any penalty by any procedure before any court with no appeal, certainly the House was not informed of that fact at the time when it was asked to give the Government that power. Therefore if the Minister has the power to do these things, then at some stage we were not told what we ought to have been told, because if we had known that we were giving that power, I think something more would have been said about it.
I am not at all sure that the alleged concession to guarantee to us that these courts shall be civil courts is a real one. I am not in the least convinced that some civil court set up ad hoc, consisting of persons appointed by the Minister, and, as one hon. Member said, with the approval of the Patronage Secretary and the whole of his machine, would be any more pleasant to appear before than a straight court-martial. I want also to ask the Home Secretary whether he will tell us a little bit more frankly what is the real problem that is facing him, because I have not been able to make out what it is. We may get fighting in this country and in those circumstances, mixed up with the fighting, people may do things which we want to prevent them from doing. That is the problem. What are those things which it is alleged people may do? Cut telephone wires, spread false rumours? Surely, those are offences that are already provided for in the Regulations. If there is any offence which is not provided for, I think the right hon. Gentleman ought to tell us what is that offence.
Then let the right hon. Gentleman simply introduce two new Regulations to cover looting and forcing a safeguard. I thought that the regulations were very comprehensive when it comes to interfering with the discharge of the duties of the Forces or doing any act likely to assist the enemy. If the Home Secretary would introduce two regulations to cover looting and forcing a safeguard, that would clear up those points. The matter would then be one of procedure. How are we going to deal with somebody who is offending? In connection with this point, I beg the House to consider whether we are now acting under this pressing sense of emergency to which the Minister and several hon. Members have referred. What is this emergency in which we are supposed to act? Is it really suggested that if this House does not pass this Measure, something terrible will happen in the next few days? I cannot see what that terrible thing is—provided, of course, that looting regulations are passed, and no one would object to that.
We all know that we are liable to invasion, but what is supposed to happen, in the event of an invasion to-morrow, which will not happen if this Bill is not passed? Without this Bill it seems to be suggested that people will be cutting telephone wires or looting will take place and that nothing can be done about it; but already, under the Emergency Powers, any constable or member of the armed forces can arrest anyone who is committing offences against the regulations. If it is argued that in these circumstances it is difficult to bring people to trial I will grant that that may be so. Let the Home Secretary ask us therefore to pass a Bill, or sanction regulations, giving him powers, either to keep a man in detention until it is militarily convenient to try him, or to make the trial more expeditious. We cannot be expected, under a plea of emergency, to grant to the executive, powers which will enable it to arrest anyone for anything, and try any one by any secret procedure without appeal. That, after all, is a fairly accurate summary of the system we have engaged in this war to destroy.
I have heard many speeches in this House, but I have never heard a more inappropriate speech than that of the hon. Member for Barnstaple (Sir R. Acland). But I am not at all surprised, because I remember when the Home Secretary came here to do a job of work, and not as a politician, all the politicians on the Liberal benches tried to tear to pieces a very small Bill which he presented. Now they are making the same futile points when we are on the verge of invasion. This House has to realise that the sooner the old Liberal party stop playing politics the better. They played politics with Ulster, but we knew how to deal with them. They tried to interfere with us when we brought in a very innocuous Bill; when Mr. De Valera brought in really coercive measures they said nothing about it. Still they play politics in this House but I do not think the House will any longer allow them to play politics with the Home Secretary. I have never heard such rubbish as the hon. Member has uttered, and I am surprised that a young man of the hon. Member's age should be sitting here and talking such nonsense.
I do not think the hon. Member for Antrim (Sir J. McConnell) was really entitled to launch the attack he did on the hon. Member for Barnstaple (Sir R. Acland), nor do I think the Home Secretary desired him to undertake the advocacy of his defence. Most hon. Members, including the hon. Member for Barnstaple, have a wholesome respect, not unmixed with admiration, for the great work the Home Secretary has undertaken during the past few months. He has had an extremely difficult job; it has been a complicated job and one of multifarious phases. I will not say that in every respect I agree with what he has done, but he has done an extremely difficult piece of work. It is all the more regrettable, therefore, that at times he should go a little bit off the rails.
I shall not go into the questions of aliens and refugees and so forth, where the Home Secretary has given way to a good deal of clamour and even panic. Here again I think the right hon. Gentleman is doing something which is quite unnecessary. If it be necessary to make any change at all, there are other methods by which it could be achieved. I am quite sure that there is no one in this country who has not an aversion from the setting up of special courts for any purposes. Our courts have a long standing tradition and they have withstood the attacks of centuries. The one thing special courts lack are the safeguards which in a hundred and one directions are provided by our courts of law and these safeguards are the result of many years of sacrifice on the part of many people, and of accumulated experience. These safeguards in my experience are always absent in any special court which is established. I am not complacent or in the least satisfied with our present system of justice. I could offer a good many suggestions for improvement, but I think that wherever possible we should keep to our courts of law, our precedents, traditions and so forth, even in the midst of war.
The professed object of this Bill is to provide some middle way between handing the trial and punishment of certain offenders over to the military, on the one hand, and on the other leaving them to the civil court which might be difficult to convene during wartime. It seems unnecessary to set up special courts for that purpose. I should have thought it possible to pass an appropriate Bill or regulation, as the case may be, to enable judges of the High Court, who at present travel around various parts of our country, to sit, if necessary permanently, in certain districts. I imagine, for example, that 10 to 12 judges could keep station throughout the whole length and breadth of the land, in such a way that no one would have to travel more than 50 or 60 miles to reach them, and jurisdiction might be conferred on them, without the usual preliminary investigations before a court of summary jurisdiction. By that method the difficulty might be got over.
I am not prepared, however, even in the situation with which we are faced, to agree to a Bill which confers at some indefinite time, on some indefinite court, for some indefinite offences, the power to inflict the penalty of death without the possibility of any review or appeal. I hope that the right hon. Gentleman will think fit to withdraw the Bill and to introduce it in some modified form. I am sure that he with his ingenuity and with the ingenuity of his officials can find a hundred and one ways of getting us out of our present difficulty. I have made one suggestion with regard to stationing of High Court judges, and I can imagine a number of other alternatives. It is not fair or reasonable to ask us to pass a Bill of this sort, in the indefinite terms in which this Measure is drawn. I am not prepared to vote for such a Bill, and I ask the right hon. Gentleman to withdraw it and bring forward such alternatives as will meet with the full support of the House. Unless he is prepared to do that, I shall not be willing to vote in favour of the Bill if there is a general feeling in the House that a Division should be taken.
My objection to the procedure and the administration of the law as proposed in this Bill is based on somewhat different grounds to the objections of some hon. Members who have spoken. I should not have risen but for the comments of my right hon. Friend the Member for Horsham (Earl Winterton), who suggested that if anybody did not like the Bill he was really preventing the arrest of Quislings, and so on. It is because the kind of procedure envisaged in the Bill may lead to many Quislings getting off scot free that I do not like it. I do not see any merit in the fact that these courts will be wholly civil; that rather detracts from their effectiveness. Nor do I see any merit in saying that the President will be some man learned in the law, for it may very well result in somebody getting off who ought to be dealt with summarily. I saw something of courts-martial in the last war and since then I have seen a good deal of Departmental inquiries, and it seems to me more likely, whatever the Home Secretary may have in mind, that, when it comes to the point of applying this Bill and the regulations behind it, it will not be the Home Secretary who will have the say in the appointment of the courts. In the stress of internal war an official in one of the regions will have the appointment, and so far from getting highly experienced learned judges of the High Court, and so on, we shall get in charge of the courts Departmental officials who may very well fail to respond to the exigencies of the situation. The result will be that when the military authorities apprehend offenders who ought to be summarily dealt with, those offenders may very well get away, because the composition of the court is Weak and its members not alive to the real dangers that beset the locality. That is one objection.
The other objection is that, in this Bill, the Home Office is hugging too tightly its control over affairs. All along the line, in matters relating to internal security, one finds the various branches of the Home Office reluctant to allow any kind of function to be detached from that Department and handed over to another Department. One sees in this Bill not any real objection to the procedure of courts-martial in the military areas to which my hon. and gallant Friend the Member for Epsom (Sir A. Southby) referred; one sees in it that perpetual reluctance of the Home Office to allow one of its ordinary functions to be administered, even temporarily, by another Department. In the circumstances which may arise, and in which this Bill may have to operate, we cannot ride two horses. The urgent requirements of justice and summary jurisdiction may be such that we could not have two kinds of courts functioning. We could not have, as it were, a system dependent on the military for apprehending people who are doing Fifth Column work, and a weak court with some quasi-legal man in charge letting people off and failing to respond to the needs of the situation.
It seems to me that this Bill is the negation of the kind of firm authority and firm application of authority which is needed in the circumstances envisaged in the Preamble. For these reasons I think it is a bad Bill, that it is wrongly conceived, that it is wholly vague and that it may be misused. The powers which are given by it may be abused, not by my right hon. Friend while be is in charge of his Department, but in the regions, when authority is devolved in times of crisis. I suggest it would be much better to take the Bill back, to reconsider it and to bring forward a clear-cut proposition. The Government should put into the Bill the kind of court which is envisaged and the circumstances in which it shall act; and apart from that, for the special conditions in the military zone they should provide that a properly constituted court-martial shall he allowed to function in the case of civilian offenders who need an immediate and summary trial. The summary trial, without any kind of review or confirmation, is wholly bad. No military court-martial has the final word in its findings. Whatever be the decisions of a court-martial, they are subject to revision by the higher authorities and subject to confirmation before any drastic penalty can be inflicted. The immediate infliction of a drastic penalty is not a matter of great moment, so long as a man is apprehended or is in custody. Whether sentence of death or imprisonment is carried out a day or a week after it has been passed is of no great moment, but there should be some gap during which the finding of the summary court will be reviewed by higher authority. In the case of penal servitude or the death penalty, the sentence ought to be subject to confirmation by a higher and more competent authority than the kind of court we shall get under this Bill.
The broad intentions of this Bill must command support and no hon. Member would desire to withhold from the Government necessary or essential powers. The sentiments expressed by the Minister for Home Security in each of his two speeches must also have commanded considerable support, but the one thing apparent from this Debate is that the Bill in its present form does not command the undivided support of the House. It is a Bill which establishes, without notice, an entirely new judicial procedure, a judicial procedure which is undefined, a judicial procedure which apparently has to be the subject of regulations, regulations which cannot be reviewed by this House but can only be accepted or rejected. In those circumstances I would ask the Minister to withdraw this Bill and bring forward a comprehensive Measure which sets out in detail the powers for which he is asking. It has been said by the Minister that various authorities, I think he said judicial as well as the military authorities, have been consulted. I wonder whether the Lord Chief Justice has been consulted. He, one knows, is a great opponent of legislation by regulation, and that is what this Bill in fact effects. It is clearly bad that a completely new judicial system should be introduced in this way, and in view of the fact that the Bill clearly does not command the support of the House and of the fact that the Prime Minister has said that he is most anxious to carry this House of Commons with him at all stages of the present emergency; and further in view of the fact that with this Bill the right hon. Gentleman is clearly not carrying the undivided support of this House with him, I would ask him to reconsider the matter and to introduce at a later stage a Bill which, in fact, effects that which he is asking and which sets out in detail that which is intended.
This country has had the good fortune not to have been invaded since 1066. We live in days when invasion, or rather an attempt at invasion, is an event which we have to contemplate, and we therefore have to consider whether special measures should be taken, and, if so, what special measures, for the punishment of offenders should such an invasion take place; not so much when the battle is actually raging but during the aftermath, when the invasion has been repelled, as it will be, but when conditions would be such that it would be impossible for the ordinary legal procedure to function, and it might be vital from the military point of view to have courts which are able to deal quickly and expeditiously with the most grave offences. The right hon. Gentleman the Member for Keighley (Mr. Lees-Smith), who spoke first, and the hon. Member for West Middlesbrough (Mr. K. Griffith) said that while my right hon. Friend had told them that he did not intend to set up courts-martial to try civilian offenders, yet powers were being taken under this Bill by which that result could be produced by regulations. My right hon. Friend met that point at an earlier stage in the Debate by saying that he would be willing to insert words to make it clear that that was not his intention. Later speakers have taken a different view. They have advocated courts-martial, have thought they were desirable, and have said that not only should this power be taken but that it should be exercised.
Two or three hon. and learned and gallant Gentleman referred to martial law, and it is almost impossible to avoid reference to martial law in a discussion of this subject; but as they will find out if they refresh their memories by reading the excellent introduction to the Manual of Military Law, the use of the phrase "martial law" is always apt to create confusion, because, as is pointed out there, it is used in two quite different senses, and I have on occasions found it used in a third and indeed in a fourth sense. It really does conduce to the clarity of discussion if one can avoid the use of that term, because it is never quite certain in what sense people are using it. What is usually referred to as martial law in this country is the common law power which the military forces of the Crown have to take all measures necessary to repel and deal with invasion or attack. They have the fullest power under the law to take all measures necessary for that purpose, and nothing in this Bill or in any regulations that will be made under it will limit that common law power, based on military needs and necessities. And, of course, that power includes the power, if circumstances make it necessary, to deal, and it may be to deal out of hand, with an obstructing civilian, or a traitorous civilian if he is obstructing military operations, or if he is found doing some of the acts which have been referred to in the course of the Debate. I want to make it clear that nothing in this Bill interferes with that general overriding necessary power, which I am sure has the approval of every Member on every side of the House.
What, then, is the problem with which the Bill and the regulations made under it seek to deal? As I have said, it does not arise in the immediate battle-area. When the guns are going off, when fighting is actually going on, there is no opportunity to apprehend people and deal with them by due process of law. It is the problem which may arise—and may not—not necessarily over the whole country but in certain areas, in the aftermath of an invasion or attempted invasion, when the enemy have been driven back but when there are small parties of men about. There may be disturbance and confusion, and it is vitally important that such of the population as are there should do nothing to impede operations, and should realise that certain offences may carry the heaviest penalties, and there should be courts with power to deal with offenders, if any, and impose those penalties at once.
The point I want to make clear is that the military authorities themselves desire positively that there shall be courts of this kind available to assist them in dealing with the situation which may arise. It is not simply that they approve, but that they desire positively that there shall be courts such as this. I will deal a little later with the question as between the civil courts and the courts-martial, but it is surely an important point, in considering a Measure of this kind, whether the military authorities upon whom the responsibility rests think that it is desirable in the interest of the task which the country places upon them. The important thing, if you get offences of this kind by the civil population, is undoubtedly speed. That inevitably involves abrogating the normal procedure of this country regarding examination by committing magistrates, depositions, and all the rest of it. It is important that the procedure, though speedy, should preserve the essential elements of a trial and natural justice; a man must know what the charge is against him, and have a chance of dealing with it by preparing his defence and calling any evidence.
Most of the cases will be plain. They will be cases where the evidence will be clear and straightforward, and it is unlikely that the courts will be called upon to deal with cases which involve long hearings, doubtful evidence on one side or the other, masses of witnesses and so on. It is important also that the courts should have power to impose the full penalties which may be imposed under the law. More than one hon. Gentleman has spoken as though the courts to be set up by regulation under the Bill might create new offences. That is, of course, quite untrue. [An HON. MEMBER: "The regulations do so."] The regulations can do so to-day. They have been creating fresh offences at the rate of at least one a week for the last few months.
These courts have to administer the law of the land.
The hon. and gallant Member for East Nottingham (Captain Gluckstein) seemed to think that there was some great anomaly in having court, to deal with offences which were being dealt with by other courts. There is surely no anomaly. The same offences can be dealt with to-day summarily, by quarter sessions or at the assizes. So far as sentences are concerned, judges may have different ideas as to the proper sentences. It is perfectly well known that, how ever you try to get sentences roughly equal, courts continue to deal out different sentences.
Surely the right hon. and learned Gentleman must be wrong. Perhaps he would look at paragraph (a) which reads:
for the apprehension trial and punishment of persons offending against the regulations.
Surely the difference between these courts, when they are set up in one part of the country, and the courts existing under the old procedure, will be that, in one court there will be a right of appeal for a given offence, and in the other, no right of appeal, which will mean that the citizen will be treated in one way in one part of the country and in another way in another part of the country for the same offence.
The hon. and gallant Gentleman is dealing with the question of whether there would not be an anomaly if fundamentally different penalties were attached by these courts to these offences from what were attached by the normal courts. We see that, in the normal courts, penalties may differ, but those normal courts are prevented, to a degree, from wide differentiations of that kind. The normal courts sit in public and there is constant public criticism.
I was merely pointing out as a preliminary that you have the anomaly, if it is an anomaly, of different courts at present. There will be not only no right of appeal from these courts but there will be no jury. The justification is the situation in which the power is to be used. It cannot be stated too forcibly that that is the point which this House has to face. Something may happen which has not happened here for 1,000 years and which will present special problems. The military may require certain courses to be taken with speed and expedition, at the time of an offence which, if unpunished, may impede military operations which everybody wants to help.
Having reached the point that the military authorities, for reasons which I have given, require a court of this kind as part of the machine which should operate in areas, in these conditions, we are then faced with the question, Should they be civil courts or courts-martial, or courts in the nature of courts-martial? That matter has received very full and careful discussion. Some hon. Members have stated that the Bill ought to have been brought forward sooner, because the possibility of invasion, or circumstances in which invasion would become possible, have been with us for some time. That is true, of course, but it is also true that this is not the only problem which has been created by the circumstances. I can assure hon. Gentlemen in all quarters of the House that we have not just sat doing nothing about this problem. It has been the subject of very careful discussion. It was important that steps be taken, as they have been, to get the views of the military authorities on what procedure they thought would help them most, and, considering them in the light of other considerations, to decide whether that was a procedure which, as a whole, the Government could recommend to the House. The military authorities, of course, had a great many things to do. I can tell the House that the military authorities do not desire to deal with civil offenders by courts-martial or courts in the nature of courts-martial. That is their considered view after very full consideration of the issues involved in one way or the other. They desire speedy courts, but they do not desire that civil offenders should be dealt with by courts-martial. One of the reasons, no doubt, is that referred to by my hon. Friend the Member for Abingdon (Sir R. Glyn), that you do not want to take serving officers away from normal military duties more than is necessary, and I think that the conception of officers who would not, in fact, be serving officers but who would be lawyers, who would put on uniform with no idea of serving in the field, was not an idea which commended itself to the House, and it certainly does not commend itself to the military authorities.
I hope I may be allowed to say that the idea does not commend itself to me, and I did not put it forward. What I suggested was that there must be a number of ex-service officers who are competent to sit upon such tribunals, having experience as soldiers and of courts-martial. I do not suggest for a moment that you should take lawyers, dress them up as soldiers and pretend that they are officers, although, as the right hon. and learned Gentleman knows, it has been done.
I misunderstood the hon. and gallant Gentleman. A court-martial, of course, is not a very speedy procedure, and that I think is one reason why it was not thought very appropriate for this particular problem. That being so, the court-martial being ruled out and speed being of the essence of the solution to the problem, it was felt that the best solution was to have a special civil > court and to man it with the highest judicial talent available for this special work.
The other point which was raised was the suggestion that instead of this being dealt with by regulations we should produce a sort of Judicature Act for these special courts. No doubt, that may have its attractions to some people, but I am afraid it is really impracticable. After all, when this House passed the original Emergency Powers (Defence) Act, it recognised, and recognised, if I may say so with all respect, in its wisdom, that under war conditions you need a rapid legislative machine, and it obtained its ultimate control by ensuring that regulations are laid upon the Table. They can be discussed; the Government have to bow to the opinion of the majority of this House. But if ever there was a matter which demanded the speed and elasticity which the regulation-making method provides, I should have thought that it was the setting-up of courts to deal with this problem. My right hon. Friend this afternoon gave to the House a general indication of what he had in mind. He undertook to discuss with those particularly interested in this matter, representing different sections of opinion, the provisions or any special provisions, in which they were interested or on which they held strong views. I hope that the House may now give this Bill a Second Reading.
My right hon. Friend said that that was under the regulations and not in the Bill. There may be circumstances in which it is unnecessary to have an appeal. After all, there was no right of appeal in this country until 25 years ago. [An HON. MEMBER: "And what a mess they made of it."] I do not agree. For centuries, until 1912 there was no appeal in criminal cases, and as regards Scotland there was no appeal until 1927. Scotland lagged behind. You may get a state of affairs in war-time in which it is necessary that penalties should be imposed, and imposed without appeal. It arises under the regulations and not in the Bill, and it comes within the general scope of my right hon. Friend's undertaking that, subject to there being no delay, he will do all he can to discuss any points which are raised. This Bill is the result of a great deal of discussion. It is the solution to a problem which certainly needs a solution. We believe it to be on the right lines, and we believe that the form which my right hon. Friend has adumbrated is the best form to meet the requirements of the military and of the public.
After the able speeches which we have heard from the Minister of Home Security and the Attorney-General, I think nothing more need be said. I am reminded of the old Scottish lady and the minister who, in the course of his sermon, said: "What more need I say?" and she said: "Say 'Amen' and sit down." I feel something like that. I regret the turn which this Debate has taken. To me there has been something unreal and depressing in the Debate at a time when, as a nation, we are engaged in such a herculean struggle with our enemies. One would think we were living in the piping days of peace, and not faced with a life-and death struggle. It is very little that the Minister of Home Security is asking from us for the safety of our country.
I rise not to make a speech but to ask the Minister of Home Security a question concerning the application of this Bill. I want to know whether the Bill will apply to the whole of the United Kingdom—in short, will Northern Ireland come within the ambit of the Bill?
With the leave of the House, I wish to say only that at the opening of the Debate I pointed out that my hon. Friends were satisfied with the general intention of the Bill, and with the intention of substituting, so far as possible, civil courts for military courts. I referred to many omissions from the Bill, and I have taken note of the reply of the Minister of Home Security that he would endeavour to find words to include, at any rate, the main points that I suggested. I hope that he will do that after consultation with different sections of opinion, and that he will also take into account the views of different sections with regard to the regulations, as he did on a previous occasion. On that understanding, I shall not invite my hon. Friends to make any difficulty about the passage of the, Second Reading of the Bill.
|Division No. 63.]||AYES.||[8.45 p.m.|
|Albery, Sir Irving||Headlam, Lieut.-Col. Sir C. M.||Quibell, D. J. K.|
|Ammon, C. G.||Hely-Hutchinson, M. R.||Raikes, H. V. A. M.|
|Anderson, Rt. Hn. Sir J. (So'h Univ's)||Henderson, J. J. Craik (Leeds, N.E.)||Ramsbotham, Rt. Hon. H,|
|Aske, Sir R. W.||Holdsworth, H.||Ramsden, Sir E,|
|Attlee, Rt. Hon. C. R.||Hopkinson, A.||Rankin, Sir R.|
|Balfour, Capt. H. H. (Isle of Tha[...]st)||Isaacs, G. A.||Reed, Sir H. S. (Aylesbury)|
|Beamish, Rear-Admiral T. P. H.||Jackson, W. F.||Reid, W. Allan (Derby)|
|Beaumont, H. (Batley)||Jenkins, A. (Pontypool)||Rickards, G. W. (Skipton)|
|Blair, Sir R.||Jones, Sir G. W. H. (S'k N'w'gt'n)||Ridley, G.|
|Boulton, W. W.||Jones, L. (Swansea W.)||Ritson, J.|
|Broadbridge, Sir G. T.||Jowitt, Rt. Hon. Sir W. A.||Robinson, W. A. (St. Helens)|
|Bromfield, W.||Keeling, E, H.||Salt, E. W.|
|Brooke, H. (Lewisham, W.)||Kennedy, Rt. Hon. T.||Samuel, M. R. A.|
|Burke, W. A.||King-Hall, Commander W. S. R.||Sanderson, Sir F. B.|
|Butcher, H. W.||Lamb, Sir J. O.||Seely, Sir H. M.|
|Chapman, A. (Rutherglen)||Law, R. K. (Hull, S.W.)||Selley, H. R.|
|Christie, J. A.||Lee, F.||Shepperson, Sir E. W.|
|Cook, Sir T. R. A. M. (Norfolk, N.)||Little, Dr. J. (Down)||Sinclair, Rt. Hon. Sir A. (C'thn'a)|
|Cooper, Rt. Hon. T. M. (E'burgh, W.)||Logan, D. G.||Smith, Sir R. W. (Aberdeen)|
|Crooke, Sir J. Smedley||Lucas, Major Sir J. M.||Somervell, Rt. Hon. Sir Donald|
|Crookshank, Capt. Rt. Hon. H. F. C.||MacAndrew, Colonel Sir C. G.||Storey, S.|
|Dalton, H.||M'Connell, Sir J.||Strauss, H. G. (Norwich)|
|Dobbie, W.||Macdonald, G. (Ince)||Strickland, Captain W. F.|
|Edwards, Sir C. (Bedwellty)||McEwen, Capt, J. H. F.||Stuart, Rt. Hon. J. (Moray and Nairn)|
|Erskine-Hill, A. G.||Macmillan, H. (Stockton-on-Taes)||Sutcliffe, H.|
|Erskine, Lord||Magnay, T.||Tinker, J. J.|
|Foot, D. M.||Maitland, Sir Adam||Tomlinson, G.|
|Frankel, D.||Mander, G. le M.||Turton, R. H.|
|Fraser, Captain Sir Ian||Margesson, Capt. Rt. Hon. H. D. R.||Wakefield, W. W.|
|Fyfe, D. P. M.||Mathers, G.||Watson, W. McL.|
|George, Major G. Lloyd (Pembroke)||Mitcheson, Sir G. G.||Westwood, J.|
|Gibbins, J.||Montague, F.||Whitaley, W. (Blaydon)|
|Gibson, R. (Greenock)||Morris, J. P. (Salford, N.)||Williams, E. J. (Ogmore)|
|Glyn, Major Sir R. G. C.||Morris-Jones, Sir Henry||Wilmot, John|
|Granville, E. L.||Mort, D. L.||Winterton, Rt. Hon. Earl|
|Griffiths, J. (Llanelly)||Munro, P.||Womersley, Sir W. J.|
|Grimston, R. V.||Nield, B. E.||Woods, G. S. (Finsbury)|
|Guest, Lieut.-Colonel H. (Drake)||Paling, W.||Woolley, W. E.|
|Gunston, Capt. Sir D. W.||Peake, O.||TELLERS FOR THE AYES.—|
|Hall, G. H. (Aberdare)||Petherick, M.||Major Sir James Edmondson|
|Hammersley, S. S.||Pickthorn, K. W. M.||and Mr. J. P. L. Thomas.|
|Hannah, I. C.||Ponsonby, Col. C. E.|
|Harbord, Sir A.||Price, M. P.|
|Bevan, A.||Lunn, W.||Stephen, C.|
|Daggar, G.||Maxton, J.||Stokes, R. R.|
|Gluokstein, L. H.||Naylor, T. E,||Viant, S. P.|
|Hall, W. G. (Coilns Valley)||Owen, Major G.||Wilson, C. H. (Attereliffe>|
|Harvey, T. E.||Shinwell, E.||TELLERS FOR THE NOES.—|
|Horabin, T. L.||Sorensen, R. W.||Sir R. Acland and Mr. Silverman.|
Question, "That this House do now adjourn," put, and agreed to.