Clause 5. — (Definition of member of force for purposes of Allied Forces and removal of doubts arising therefrom.)

Orders of the Day — Allied Powers (War Service) Bill. – in the House of Commons on 9th July 1942.

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Photo of Mr Denis Pritt Mr Denis Pritt , Hammersmith North

I beg to move, in page 3, line 45, to leave out "been duly discharged therefrom," and to insert: with or without the consent of such allied Power or foreign authority, ceased so to serve before the date of the passing of this Act.

This question has been partly discussed already, but to my mind it is a very serious matter. As this is the inevitable legislation by reference to reference to reference, perhaps I might explain what the legal position is. In English law there is plenty of law relating to what you may do to English Armed Forces, but if anybody else who is a member of the Armed Forces of some other country happens to be in this country, he is an ordinary visitor with full rights and you cannot apply any military discipline to him at all. The first inroad into that was taken some years ago when visiting Forces of the Commonwealth were in this country and it was necessary to provide for their discipline. Consequently, it was enacted in effect that whenever Commonwealth Forces were visiting here you could apply the measures of the English military legislation to them as if they were members of our Armed Forces. There then arose, and arose acutely after Dunkirk, the question of the Armed Forces of the various Allies who came to this country, not as isolated visitors, but in considerable numbers. It was considered necessary—and it obviously was necessary, otherwise they might have melted into thin air—to make provision for them. It was a reasonable legislative point of view as a matter of practice to say, "We will apply to them by the Allied Forces Act the provisions of the Visiting Forces Act, and in that way we shall ultimately apply the ordinary British legislation applicable to British soldiers."

That meant that at two removes, if a man deserts, say, from the Dutch Forces, he can be fetched back by a Metropolitan Police constable and tried as an ordinary deserter before the police court and sent back to his Army. I mention that partly because some day you may want to see a connected narrative about it, and partly to emphasise that I doubt whether the Allied Forces Act was ever intended to apply to anybody but the Allied Forces which came here. When in fact an effort was made in the case which is now pending, in which I am no longer engaged, to say that the Allied Forces Act applied to people who have been brought into those Forces while they were here, it was commonly said that the view of the Law Officers of the Government was that the Allied Forces Act had never been intended to do anything of the sort. My own view was that it plainly did apply to anybody who was a member of those Forces even if they had only become members while they were here. What Sub-section (1) of this Clause seeks to do is to say that if anybody has been a member of those Forces, however illegitimately and reluctantly, and however intolerable he finds them, he shall be deemed to be a member unless he has actually been given his discharge. That means that he can be arrested the day after this Bill becomes law and treated as a deserter.

There are two grave evils in that. Ironically and rather tragically—and I say this with no desire to pay an undeserved compliment to the Government—we have here a Bill which is obviously the result of prolonged negotiation, in which the British point of view and the point of view particularly that I am putting forward, that these people should have proper consideration, has obviously prevailed to a great extent. As a result this is not a Bill to compel people to go into the Forces of an allied Power; it is a Bill to say that they must go into one or the other and that they may choose. It is ironical and sad that in this very Bill we should thus have an Amendment of the Allied Forces Act which enables x Government to go to a whole group of its nationals and say, "You thought the Allied Forces Act was going to let you go into the British Army and be free of our Forces which you do not happen to like, but there is a section in that Act which says that we may after all cut the whole of these things clear by collecting you as deserters, and we shall do it to-morrow morning." The more important objection I raise is that this is a sort of retrospective conscription. It really says to any one of quite a number of men, "You were taken into our Forces, and you disliked them so much that you walked out. We cannot fetch you back because we were advised that there was the gravest doubt whether you could be described as members of our Forces. Now we are getting in a Bill, which is primarily designed to give you freedom to serve in the British Army, power to conscript you. The Allied Powers Bill gives us no power to conscript you, but because we rather illegitimately in some cases got you in uniform for 24 hours 18 months ago, we can now say you are conscripted by this indirect method. Because you were in uniform all that time ago you are deemed to be a member, and because you are a member we can, under the Allied Forces Act, assume you to be a deserter and put you into our Army."

The whole scheme of this legislation is that there shall never be conscription of a man of X country in this country. We have expressly refused to conscript him into the X Army, but have said that if he does not choose to go into the X Army he shall be conscripted into the British Army; and yet by this Clause we are saying that a particular class who, if anything, ought to be regarded as rather more deserving than less because they happen to have been put into that Army when they need not have been, are to be indirectly and retrospectively conscripted; because the effect of this legislation will be that just as that man thinks he is going into the British Army he will be arrested by a Metropolitan policeman and made into a private in the X Army instead. Frankly, I have found the very greatest difficulty in deciding how to legislate to deal with this matter, and I am not very happy about the precise form of words suggested, but if we can get the Government to agree in principle, there probably will not be much difficulty about the form of words What the hon. Member for Nelson and Colne (Mr. Silverman) and I have sought to do is this: The Clause as it stands applies to any person who has served in the Allied Forces on or after the date of the passing of the Allied Forces Act and has not been duly discharged therefrom. What we want to do is to get rid of the idea of a formal discharge, which I imagine is given in very few cases, and to substitute what I might call a de facto discharge. Therefore, we would like to leave out the words been duly discharged therefrom and to put in other words so that the Clause would read that a man is deemed not to be a member of those Forces if he has served in those forces on or after the date of the passing of that Act and with or without the consent of such Allied Power or foreign authority ceased so to serve before the date of the passing of this Act. I am sorry to have taken a little time over this, but it is a complicated matter from the legal point of view, and that must be my excuse.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I think it would be convenient if I dealt first with the substance of my hon. and learned Friend's point before I draw attention to certain difficulties in his Amendment, because he frankly said that he recognises that there are difficulties in the Amendment as it is framed. My hon. and learned Friend is really doing this Sub-section an injustice by his suggestion that it is putting another restriction or possibly binding power on the foreign nationals with whom he is particularly concerned. He will remember that in the case to which he is referring the contention became possible that a national might be treated as being a member of an Allied Force simply because he had received his calling up papers and had failed to respond. As he knows, under our own National Service Act that is the position if certain conditions are fulfilled, and the contention might have been advanced, and was certainly considered, that membership of an Allied Force might arise simply from notice having been given and the person not complying with that notice. In order to make it perfectly clear that that was not what was deemed to be membership under the Act, the Clause was drafted so that for membership to arise there must have been service in the Forces in the sense of actual service, which we have discussed already to-day. Therefore, I think that on reflection my hon. and learned Friend will realise that in crediting this Sub-section with injustice he is really placing the matter rather too high and will see that it is not in accordance with the facts.

That leaves us with the second general point which my hon. and learned Friend has made, and which he has christened "retrospective conscription." That is a formidable phrase and is not really justified for one moment by the facts in these cases. I have already endeavoured to put to my hon. and learned Friend, with alack of success of which I am very conscious, the circumstances which we are really discussing. We are discussing, as a first step, the position where the national had actually enlisted in the Forces. My hon. and learned Friend says there are certain cases in which that enlistment has been procured by undesirable means. I ask him to consider in how many cases it could be proved that the enlistment was bad because those means had been adopted, and suggest that that would reduce the number considerably. The second stage which we are considering is one in which that person, having enlisted, left the Army of the Allied Nations. There, again, there is no dispute between us. The third state of facts is that the Allied Nations have taken no steps for a considerable time to get him back. Then the position arises that under this Clause he becomes a person who has served. I have suggested that the number of cases in which these three conditions obtain, as they must obtain to produce the state of affairs which is troubling my hon. and learned Friend, the number of cases in which an Allied Government is going to change its policy and call them back, must be infinitely fewer than the few cases with which we started.

I have already said, and I am sorry it found so little favour in the mind of my hon. and learned Friend, that if there were hard cases and if he or my hon. Friend the Member for the English Universities (Mr. Harvey) or any of those who take a particular interest in these matters made representations, or if the person himself made representations, the case would be considered, and in turn representations could be made to the Allied Government and the position could be concluded by the issue of a certificate. It is a question of dealing as well as we can with a difficult subject in these difficult circumstances, and I cannot say more. I have endeavoured to put the matter frankly and fairly before my hon. and learned Friend and to give the reasons why I adhere to the view I have expressed.

It is only right that, my hon. and learned Friend having spoken with his usual freedom about the defects in my argument and knowledge, the Committee should consider the very patent defects that appear in the Amendment put forward by him. It would first of all have the obvious results that a man who deserts from an Allied Force before the Bill receives the Royal Assent will cease to be a member of the Allied Force for the purpose of the Allied Forces Act. That is not the most encouraging way to deal with Allied Forces. Even if one were to amend my hon. and learned Friend's Amendment and improve it by taking out the words "without the consent," there are manifold difficulties which are apparent. There is the curious result that a man who, with the consent of the Allied Force, ceased to serve before the passing of the Act, will cease to be a member of the Allied Force, but a man who, with the consent of the Allied Force, should serve after the passing of the Act, would be a man who had not ceased to serve before the passing of the Act, and therefore would remain a member of the Allied Force.

Photo of Mr Denis Pritt Mr Denis Pritt , Hammersmith North

I think the hon. and learned Gentleman has failed to see that the wording is "this Act" and not "that Act" in the last line.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I would still ask my hon. and learned Friend to consider this matter. I considered his Amendment very carefully, and that was the effect I deemed that it would have; but the matter does not stop there. He has talked very contemptuously, as he is entitled to do, about my consideration of the practical steps. Just take the practical steps which my hon. and learned Friend envisages. His words are "cease to serve." Just imagine a court of summary jurisdiction trying to construe those words and the difficulty which would arise. They arose here. The hon. Member for Chester-le-Street (Mr. Lawson) asked my opinion regarding them. Here, we say there should be a formal discharge, so that a document could be placed before the police court dealing with the matter and the police court have the matter clearly before it. In place of that, my hon. Friend suggests that a difficult and grave question should be left to them. I ask him to consider just what he had in mind by "ceasing to serve with consent." Who would give the consent? Would it be a sergeant-major, a captain or a colonel?

Photo of Mr Denis Pritt Mr Denis Pritt , Hammersmith North

It is evident that the Solicitor-General does not understand the Amendment at all. If it is "with or without consent," nobody needs to consider whether it is with or without. It must be one or the other.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I had already considered that the words "without consent" raised such an intolerable position that I was hoping my hon. and learned Friend would no longer wish to retain them.

Photo of Mr Denis Pritt Mr Denis Pritt , Hammersmith North

Do I understand that the Solicitor-General is criticising my Amendment not in the form in which I had put it but in that in which he thinks it ought to be? I welcome his criticism in that case most heartily.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I was only doing my hon. and learned Friend the justice to think that, on reflection, he might reject the most difficult and contentious part of his Amendment.

Photo of Mr Denis Pritt Mr Denis Pritt , Hammersmith North

He asks me to leave out a couple of words and then says that if I do my Amendment makes nonsense.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

It is apparent that if the words are not left out, the situation is intolerable. If they are left out, the situation is still very difficult. In those circumstances, I respectfully say to my hon. and learned Friend that his Amendment could not commend itself to the Committee, and for the reasons which I dealt with first I suggest that the point of view of the Government should be supported by the Committee.

Photo of Mr Denis Pritt Mr Denis Pritt , Hammersmith North

I have not the faintest intention of charging, my hon. and learned Friend with any defect in knowledge. Indeed, my admiration for the Law Officers, and my gratitude that I have never been one and never shall be one, is due almost entirely to the fact that they have to discharge day by day the utterly impossible task of defending the indefensible. Let me deal with the merits of the matter. I do not blame my hon. and learned Friend in the least. It is a very interesting controversy. He spent a couple of minutes describing my Amendment and twice that time pointing out how much more stupid it would be if, on his suggestion, I left out a couple of words. That is all beside the point. The Government are either going to concede this principle or they are not. The Solicitor-General did not say that they were going to do so, so it is plain that he was not conceding it. In these circumstances, what does it matter how difficult it might be to carry out my Amendment? If the Government had any intention to carry it out, it might matter that my form of words was a pretty bad one.

Let me get to the principle itself. Let me begin where my hon. and learned Friend began. He said that I did the Clause some injustice because it safeguards people who have been called up but have never served. at all from the argument, which I think would be a very weak one, but certainly could be made, suggesting that they were members of the Force. It is really not doing any injustice to the Clause, if it does one very important injustice and one very reasonable justice, to point out that it does do the injustice. I must protest that it is a wicked thing that the Government keep on advancing as a defence that the Clause only does injustice to a few people. It is like the famous baby in "Tristram Shandy" which was said to be only a very little one. What earthly excuse is there for the Government to get up and say—although I know they do not put it like this— "We know it is monstrous, and it could quite easily be avoided with a little good will but it does not matter for it only ruins the lives of half a dozen people. It is not as if it were a dozen or 20"? Here is an unnecessary cruelty, a wasteful cruelty, because it will make one dozen, or two dozen, or, if the statement of the Crown in the courts can be relied upon, 100 dozen people into bad and miserable soldiers instead of into tolerably good ones.

What does the hon. and learned Member suggest is the remedy? Instead of making the Act read properly he suggests to me that if any particular individual is affected by being taken off into the Army, with or without a Metropolitan police constable, and sent to his depot in Wales or Scotland, or wherever it may be, some Member of Parliament—I do not know whether he meant myself—should then make representations to the Government Department. My hon. Friend mentioned as an afterthought that perhaps the man could make the representations himself to the Government. Instead of doing the thing justly, it is suggested that people are to make representations to the British Government. One very good test is, will the Solicitor-General guarantee that if any individual in any of these armies makes representations to the British Government that he does not want to serve in those Armed Forces, that the British Government will take up that case actively with the foreign Government? If he can give that guarantee, will he tell me which is the Department, whether it is the Home Office, the Foreign Office, the War Office or—I tremble to suggest it—the Law Officers of the Crown?

I know from experience that the answer of the British Government to a representation from an ordinary individual would be to acknowledge receipt of his letter and leave it at that, and to one from a Member of Parliament would be to say, "We are really awfully sorry, but there is nothing we can do. We have passed this Bill, after the hon. and learned Member for North Hammersmith had talked for hours, it has produced all these injustices, but we cannot go to the foreign Governments, who are sovereign Governments, having given them those powers, and ask them not to exercise those powers in a certain case. It is not a question of not having time, it is not a question of advancing the argument advanced in Parliament that it was only an injustice to a few people; there is the Statute, and the foreign Power is acting within its rights." The Solicitor-General repeats once again that, after all, there cannot be many such cases. At any rate they are cases in which the foreign Power has not sought through the courts to get the man back. Let me repeat once again—he understood it when I said it before, he will understand it when I say it again, but he has given it the go-by in his answer—that there is a test case still pending. If there had been no difficulty about the interpretation of the Acts, the assumption is that Governments which have taken the trouble to put these people into their Armed Forces would have taken the trouble, for disciplinary reasons if for no other, to get them back, if they had not found that the process of getting them back led to litigation costing many thousands of pounds.

My hon. and learned Friend does not like the words "retrospective conscription." He has not answered or attempted to answer the point that there is not intended to be any conscription into the Armed Forces of any foreign Power, but that if you pass this Clause people who are not serving and do not want to serve in those Forces will be collected by the police and put into those Forces if the Allied Government wants them. What is intended by the Statute to be an option on the part of the citizen has become an option on the part of the Allied Government, as to whether they will use the couple of Statutes, which expressly refrain from giving the right to conscript anybody, to conscript people.

I have put before the Committee a number of arguments, I believe them to be sensible arguments and worthy of an answer, but the Solicitor-General, who could perfectly well produce the answer if there was one, has produced instead a series of plausible statements which leads me once again to sympathise with the people who have to perform the difficult tasks of the Law Officers. He has not produced a single argument in answer to all these points, and I ask either that the principle shall be accepted or that we shall be told that consideration will be given to it in another place. If not, it is obvious that this Government do not care whether their legislation is good or bad, whether there is an answer or not, whether it does injustices or not, or whether they have good soldiers or not.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clauses 6 and 7 ordered to stand part of the Bill.