§ Order for Second Reading read.
§ The ATTORNEY-GENERAL (Sir John Simon)
I beg to move, "That the Bill be now read a second time."
The Bill to which I ask the House to-day to give a Second Reading is a Bill to amend in certain particulars the Defence of the Realm Act. That Act was an Emergency Statute which was carried rapidly through both Houses of Parliament last autumn. The provisions of that Emergency Statute were essentially two: In the first place, it authorised new rules and regulations to be made by Order in Council, regulations in order to prevent action which might prejudice our national security in the struggle upon which we were entering. In the second place, it provided a rapid machinery by which those who disregarded those regulations might be convicted and punished. The regulations are of a very varying kind. They cover such subjects as these—regulations to control the showing of lights, to remove suspected persons from particular areas, or to prohibit any sort of communication or publication which might assist the enemy, and also regulations against signalling, and against ships entering dangerous or prohibited areas of the sea, and in fact a whole code of rules which were devised in order to meet these special and urgent circumstances with which we were faced. But, of course, it was not enough to make those regulations which were obviously needed.
What we did in the most important part of this Emergency Statute was this. We needed provisions which would enable those regulations to be enforced rapidly and effectively. So long as the offence was not a very grave one the method was easy, because we provided that the smaller offences might be dealt with by magistrates in Police Courts. As the House knows no magistrate can give a heavier sentence than six months' hard labour. A great number of cases of offences against these regulations have been dealt with by magistrates, in fact by far the larger number. Nothing that I am now proposing will in any way alter that part of the machinery. But there were graver offences, and the House at 288 very short notice had to decide what was the tribunal which could enforce rapidly those rules and regulations, vitally necessary as they were in the interests of the country, without any of that delay which is inevitable with the ordinary machinery of civil justice when we are dealing with very serious cases. Consequently the House unanimously agreed to the proposal in the Defence of the Real Act that those grave cases should be dealt with by court-martial.
There is no good whatever in disguising the fact that that was an extremely novel proposal, and created a very unique situation. As everybody who understands and cares for the traditions of British citizenship knows, in ordinary times, whether in peace or war a British citizen in this country is not liable to be tried by court-martial, unless of course he be a member of the armed forces of the Crown. Courts-martial exist in order to deal with military and naval persons, and not ordinary cases affecting private citizens. But the justification—and the whole House, and every quarter of the House is concerned in inquiring what that justification is—to my mind was a very plain one. It was this: Our first duty, the duty of all of us sitting in council here, whatever part of the House in which we sit, and whatever our prejudices may be, was, when the War broke out, to be certain that we had taken adequate and sufficient steps to provide against what obviously might be a great national danger. We did so in every department of our national life, and we departed in many other respects besides this from what have been supposed to be the traditions of our own country. The justification which it appears to me plainly existed for what we did last autumn is exactly the same justification as explains why we had three Bank holidays running, why we constituted a moratorium, why we shut up the Stock Exchange, and why we adopted novel expedients in all sorts of directions. For my part I do not think that either the Government or the House of Commons is in the least to be blamed, or at the bar of history will be blamed, because at that moment it was thinking of nothing except making quite certain that, the provisions which we had made were adequate and sufficient. That appears to me to be the justification for which we are searching—because we are all concerned in it—for what the House of Commons did last autumn.
289 I may say now that as long as the provisions of the Defence of the Realm Act as it now stands on the Statute Book give nothing more than is needed in this national emergency the argument that they are novel and do violence to our constitutional traditions is an argument of very little weight. But there is also the fact that it becomes a matter of the greatest importance for everybody who cares for what is characteristic in British institutions to see, now that we have had some seven months of experience, whether the provisions which we then adopted by common consent in any degree go beyond what is really necessary in order to safeguard national interests. We have had seven months experience. That means, on the one hand, that we have been able to measure exactly how far our needs in this regard extend and how precisely the previous Statute meets them; and it means, on the other hand of course, that we have got more time, and it has been possible with the help of that time to prepare measures—it was not a thing which I found very easy to do—which the Government now recommend to the House of Commons as being perfectly consistent with the over-riding duty which we owe to the country, and to see that while we make adequate provision in this emergency against any danger we also do something which will relieve the genuine and proper concern which many people have felt at what appeared to be like a denial of an ancient and constitutional judicial right.
The Government will not, of course, propose any change which involves a surrender of any powers, however novel, which are in any way required for national security. The Amendments which we are proposing will in no way infringe the over-riding condition to which I have referred. I may point out to the House what is the real extent of the novelty which the Defence of the Realm Act undoubtedly involves. As I said just now, in ordinary times courts-martial are the courts which deal with soldiers and sailors. The difficulty is to be found in the traditions of our Constitution and in one of the characteristic features of the constitutional life which we live in this country. It is not so, of course, in all civilised countries; but it is our pride, and it ought to be our pride, jealously to preserve this tradition of the ancient rights of British subjects to say, "We are amenable to civil tribunals, and courts-martial 290 are for the purposes of the discipline of those who serve in the Army and Navy."
There is one qualification, and it is a qualification which sometimes is not always remembered or observed. It is this: If some special emergency arises in which the ordinary tribunals are not effectively available, then military justice, as those who are authorities on Constitutional Law quite recognise, becomes a necessity. It is justified in that event by the needs of public order, and by the over-riding principle of National defence and security. What I am now proposing by way of modification or amendment of the Statute is not in any way in conflict with that principle. If Members will turn to the Bill, and will look at Subsection (5) of the operative Clause, they will see that we have carefully safeguarded ourselves from being supposed to forget that exceptional case. If this country was suddenly exposed to invasion, or if some other special emergency of that character arose, in which the civil tribunals would not be effectively available to do their work, then it is clear, as a matter of common sense, and I believe entirely consistent with our old traditions, that we should have to use military tribunals because those tribunals would be practically available; and, since we have already set up the machinery by which military tribunals can be used, and have got those regulations which prescribe in definite terms what rules are to be observed, we must insist on our providing in this Bill that, in those eventualisies, eventualities which I trust will never arise, but if they do arise, the proposals of this Amending Bill are not to operate, and we return to the situation as it was. I may be asked who is to decide whether or not, under Sub-section (5), the Proclamation suspending the operation of the Statute is to be made. There is only one possible answer to that question. Of necessity the Executive must decide that; nobody else can decide it. The very essence of the situation presupposes that we are faced with an emergency when, in the circumstances, concentration, deliberation, and legislation is impossible, and therefore the Executive must decide whether or not the Proclamation under Sub-section (5) becomes necessary.
But I can assure the House that it is not our intention to take advantage of the provisions under Sub-section (5) and have that Proclamation, unless it be that there 291 is an emergency such as I have described; and, of course, it is far from our intention to use the power, there preserved to us, wantonly or without real and extreme necessity. Subject, therefore, to that qualification, the novelty which we set up when we passed the Defence of the Realm Act and which extended to this, that we brought the whole of our countrymen within the jurisdiction of courts-martial, without any regard as to whether they were serving in the Army and Navy or not, is dealt with by this Bill. So long as we can preserve our rights, under Subsection (5), to suspend this Amending Statute in case of extreme need, and subject to one other consideration which I shall point out in a moment — and the military authorities accept and confirm our view—there is no reason why we should not restore to British subjects the right, if they choose, when accused of a breach of the regulations, to be tried before the civil tribunal If the case is a comparatively unimportant case which can be dealt with by a magistrate, it may be dealt with by a magistrate; but where that cannot be done, it is provided that the British subject in no circumstances shall be compelled against his will to be tried by court-martial. He must have that option and he must exercise that option. That brings me to the other condition which must be taken into consideration, namely, the condition of promptitude. It is quite impossible for us to treat the present situation as we should treat a case of crime committed in ordinary times, in which a man may be accused one day and be brought up next week before the magistrate after a deposition has been elaborately drawn up, and in which he may be committed for trial before a judge and jury, sitting in some particular Assize town, perhaps two or three months afterwards, and then finally convicted if he be proved guilty of the offence. That is wholly incompatible with the situation with which we have to deal.
We have found that one of the principal difficulties in framing an Amending Statute was to provide some machinery which would avoid that delay, and we have done it, as we think, by these two provisions. In the first place, we say that the British subject must claim the right to be tried by a jury within four clear days from the time when the general nature of the charge is communicated to him. It will be obvious to the House that if you left him to claim that right until 292 the moment you brought him before the court-martial, and the court-martial sits to hear the case, and he then makes his claim to be tried by a jury, you are exposed to delay which is quite unnecessary. It is impossible to wait until the actual period of the case coming on and then give him this option. Let me say on this point, in regard to which doubt has been expressed, that of course it is our intention to secure that the British subject who is accused of breaking the regulations shall know that he has got this privilege. It will be a very half-hearted way of dealing with the situation if we did not take care of that.
The regulations are practically drawn up under this operative Clause, and it is provided that at the same time he is given notice of the general nature of the charge against him in terms he has that privilege. That is one of the steps we are taking to avoid delay. But there is Sub-section (4) of the operative-Clauses which provides that, if a person claims to be tried by a jury, the offence shall be deemed to have been committed at the place in which it actually was committed, or in any place in which the offender may be, for the purpose of the trial. The object of that is simply this, that, having caught your offender and having told him the general nature of the charge, and as the man may claim to be tried by a jury rather than by court-martial if he wishes, that you should then be able in case of need to arrange for his being tried at an Assize town or at the Central Criminal Court with the least avoidable delay. As many hon. Members know, unless you have some such proposal if he happens to be in a county where the Assizes have recently taken place, the old and familiar rule that he must be tried in the county where he commits the offence or which is associated with the offence might involve a delay not merely of weeks but of months. The House will therefore see that we have, I think, secured what is absolutely essential, namely, great promptitude in the trial of offenders. There is one other matter to which I wish to refer. I may be asked why do you limit this Clause to British subjects. It is true that in this country, so far as may be, we confer the same privileges on those who are not British subjects as we do on British subjects in so far as matters of trial are concerned. But there is a very good reason why we should so limit that. Nobody, I imagine, will suggest that we 293 should confer this privilege upon enemy subjects. That goes by the board, and therefore the only question is whether we should bring within the Statute foreigners who are subjects of neutral nations. I think there is a very good reason why we should not. Anyone who has had the duty of looking into some of the cases will appreciate that one reason is that it is not always very easy to find out as a matter of fact the nationality of your suspected offender. Very difficult and delicate questions sometimes arise as to what his nationality may be.
In my own experience during the War there have been at least two cases where the man who was caught insisted that he was the subject of a friendly nation, and it was only after particular inquiries that it was ascertained that his claim was perfectly groundless, and that he had no right at all to make it. Therefore there will be considerable difficulty in many cases of not being sure of the nationality of the offender. Moreover, there is this point. Supposing you had an undoubted case of a subject of some other State being caught on some charge, it would be perfectly open to the authorities, and in a proper case it would be very natural for them to say, "We wish the man to be tried under the ordinary criminal procedure of our land." There is nothing in this Statute which prevents that, and there are cases—there is one which has come within my own knowledge during the last few months—in which that is a very natural procedure. I warn the House of Commons not to seek to change this Bill so as to confer this statutory right on anybody except British subjects, because after all, so far as it is a matter of principle and so far as it is a matter of national tradition, it is a British principle and it is a British tradition which we are endeavouring to preserve in this Bill. I have endeavoured to explain as clearly as I can what the provisions of this Bill are, and let me sum them up. We say that our proposal will be found to satisfy these three conditions. In the first place, it preserves the machinery of military justice which we have set up through these regulations ready to be used in case of invasion or other extreme special emergency. In the second place, it avoids the delay which might otherwise, and would otherwise, arise if we allowed British subjects to be dealt with in a serious case by the ordinary civil tribunal; and, in the third place, while it satisfies both those conditions, I claim 294 that it does restore upon the Statute Book of Parliament, if you put it there, to British citizens a right which all of us ought most jealously and vigilantly preserve and which is deeply embedded in the whole fabric of British institutions. I beg to move.
§ Sir EDWARD CARSON
I think the House and the country will welcome this Bill as a modification of the Bill that was passed lately, namely, the Defence of the Realm Act. At the same time, I notice there has been a good deal of criticism of the conduct of this House in allowing the previous Bill to go through without discussion. For my own part, I do not believe for a moment, where the responsible Government came down to this House and told us in the circumstances under which we were then placed that it was necessary to interfere to the extent the Bill did with the existing constitution in relation to trial by jury, I do not think any Member of this House would have taken upon himself the responsibility of refusing those powers to the Government. I think, so long as you have regular Courts sitting, Courts with full responsibility and with great traditions, you ought, so far as possible, avail yourselves of them. But when you have laid that down as a general proposition, it is idle to say that circumstances may not arise, and circumstances may not have arisen at the time the Government brought in this Bill, which render it entirely impossible to adhere to the old traditions of the Constitution. I have not the least sympathy with some of the speeches I have seen on this subject, going back to the origin of Magna Charta and all those great foundations of liberty to which we owe so much. I do not believe any Government would wish to set any of those aside unless they thought a grave exigency had arisen. I cannot but believe that the Government, with full responsibility and full consideration, thought it necessary, when they passed the previous Bill, to bring in a Bill of that class at the time. For my own part, if they asked for the same powers to be continued to-day, I would, so far as I have any influence with my Friends, say that the Government ought to have the full powers they ask for. I do not think you can carry on the circumstances under which we now are without throwing full responsibility upon the Government for everything. They know what they have to deal with. We do not.
I think the House may congratulate itself that notwithstanding the time we are 295 passing through and what we have passed through, that the Government are able to come down here and say, after seven months of war, "We now think less drastic legislation is necessary with a view to the punishment of crime." I suppose the Government have done that for reasons best known to themselves. [An HON. MEMBER: "The House of Lords."] Just as we gave the Government the full powers they asked for when the Defence of the Realm Act was before the House, so now I think we ought to give the powers in the modified form in which they are asked, and I am sure, as those are entirely in favour of the subject, they will be ungrudgingly given. I dare say there are some hon. Members who would urge larger concessions. I certainly am not one of them. I agree with the Attorney-General, and I think anybody who has had anything to do with the administration of the law will also agree with him, that as regards what I may call less serious crime the one great thing to be aimed at is the speedy vindication of the law and the speedy carrying out of justice. That is why in lots of our legislation trial by jury is not allowed to the subject where the sentences are not of a very severe character. I think this Bill preserves all that is necessary in relation to speedy trial, whether before a Court of Summary Jurisdiction or whether it be in certain exigencies before a court-martial, a very much abused tribunal, but which, so far as I know, is a very fair tribunal. At the same time this Bill gives power to the Government, should exigencies arise, to preserve the Defence of the Realm Act in the full manner in which it was passed by the House. So far, therefore, as I am concerned, I welcome this Bill and will certainly support it.
§ Mr. GOLDSTONE
I am bound to confess feeling some disappointment not only with the speech of the right hon. Gentleman who has just spoken, but also with the speech of the Attorney-General. Both seemed in my view to be too apologetic of our old rights. I mean that both right hon. Gentlemen seemed to look with far more equanimity than possibly Members in this House will look on the abrogation of the ancient privilege of trial by jury, and, to the right hon. Gentleman on the Front Bench, speed seemed to be of infinitely more importance than the right administration of the law. As far as I could make out from his 296 speech, we have to look more to the other place for upholding the rights that come down to us by many precedents than we have been able to look to His Majesty's Government for the maintenance of them. I doubt whether this Bill would have seen the light of day if it had not been for certain individuals whom irreverent people would call old Tory peers. I go so far as to make my acknowledgments to the Noble Lords who gave us the speeches they delivered on 27th November. Those speeches might very well mean the postponement of early demise, and it is not the first time we have had to look to the House of Lords, I find, for a justification of liberties which have been won by hard struggles during the history of our country. I am bound to say I would much rather have heard from the Front Bench here references to the fabric of personal liberty, for example, quoted from one of the Noble Lords, and I would much rather have heard some references to the wholesale sweeping away of rights, which, if I may venture to mention the name, Lord Halsbury greatly deprecated. I take my share in the blame. I tell that to the House quite frankly, that the House so readily at a time of panic should have acquiesced in the Defence of the Realm Act.
I am prepared to bring before the House the details of a serious case which have been brought to my notice arising from this Act, which it is now proposed to amend, a case which, even with the proposed Amendment, would still be possible in our country. It is a case of a man who, under the regulations of the Defence of the Realm Act, is accused by idle rumour of having dealings with the enemy. The local constable being of the busybody type attends to the rumour, and reports to his chief constable. The chief constable approaches the military authorities, and is advised to cause the removal of the man and his family. As a matter of fact, the man could trace back his ancestors to five generations in the county of Devonshire, and he had lived in a Suffolk village for thirty years. The difficulty seems to have arisen because the child in his home was, for educational purposes, interchanged with a German child, the whole transaction ending in 1912. The charge of want of patriotism so worked on this man that be committed suicide, and the coroner's jury in giving their verdict, blamed the police, and in my judgment rightly. They said that they quite agreed that the deceased committed suicide while of unsound 297 mind caused by false reports against his patriotism. The jury were also of opinion that the police were very much to blame in not obtaining local information before acting on reports and rumours. The sequel was even more tragic. The wife, who had been removed, was brought back to the village by her son, who had hastened from Guatemala to enlist. He, having placed his mother in the cottage, went to the station to bring the luggage, and on his return found his mother hanging from the banisters of the staircase. That arose through this abrogation of civil rights. There was no power of appeal. If there had been, this man could have been tried by a Civil Court, evidence could have been adduced which would have shown the thoroughness of his bonâ fides, and he might have been continuing the good works which he had carried on in the village in his earlier days. I see nothing in the Amending Bill, except the right of the citizen to claim trial by jury, which would put an end to this state of affairs.
§ Mr. GOLDSTONE
No, he was removed under regulations promulgated under the Defence of the Realm Act. The initiation of action depended upon the military authorities. The officer commanding the district gave instructions to the police to take action for the man's removal. It was a military act which caused his removal. Therefore, I submit that, through the existence of this Act, the House and the police are responsible for the death of these two persons. The present Bill will make a slight difference. I was particularly pleased to hear the Attorney-General say that the man against whom an offence is alleged is to be notified of his right to be tried by a jury. Because, if it is not made perfectly clear the man who will get trial by jury will be the clever villain who can get the best advice. The individual who will be court-martialled will be the person who cannot get the best advice, and who probably is quite ignorant of his rights under the law. I urge the Government to remember that in giving these extended rights to courts-martial they are placing powers in the hands of those who are not accustomed to the administration of justice. They have neither the experience nor the knowledge to do the right thing. It is also to be remembered that the experienced officers who might normally constitute a court-martial are in the main out of the country, so 298 that the work of courts-martial will fall upon men who have not had long experience of the administration of justice, and who may have held their commissions for only a short time.
The question of venue also arises. Why not still allow a man to claim the right to be tried in the district in which he can produce his evidence? Power is taken in the Bill to have a man tried away from the district where the offence was committed, the initiative lying with the authorities and not with the man. I hope consideration will be given to an Amendment by which a man who is charged will be allowed some right to adhere to his county or district as the venue of his trial. Think what it means to a poor man to be taken right away from the persons who know him best. Think of the cost involved to that man in producing his witnesses in a Court far away from the scene of the offence. The suggestions at present incorporated in the Bill are all very well for a person who is being paid by an enemy State. I hold the man to be a villain indeed who is guilty of treasonable acts at a time of crisis; and anything I say is not to be construed as a desire to shelter a man who is guilty of any offence against the State. But under this Bill the man who has the best opportunity for getting off is the man who is receiving subsidies from the State on whose behalf he is acting. It is the individual who may commit a crime through inadvertence, who is likely to be unable to secure full measure of justice. It appears to me that this Bill is of such great importance that it ought to have more than a merely formal Committee stage. There ought to be ample opportunity of discussing it line by line if necessary. If the right of trial by jury has been built upon precedents, the right of trial by jury may go on precedents. I am somewhat fearful of creating at a time of panic unnecessary precedents interfering with the right of free speech, the right of free expression of opinion, and the right of free movement, and I should have been glad to hear something from the Front Bench assuring me that there was a truer sense of the fitness of things and a keener desire to retain the liberties which have been won for us by many arduous struggles.
§ Mr. HARRY LAWSON
The Attorney-General has explained the Bill with that perfect lucidity which distinguishes him above most of the lawyers in this House. 299 This is no time to indulge in general heroics about the liberty of the subject, or to quote Blackstone on the sanctity of the home, and I do not think there will be many Members who entirely share the view of the hon. Member opposite (Mr. Goldstone) that no emergency legislation of this sort was required. It is no good telling us that he holds the man to be a villain who does the things against which this legislation is directed, unless he can prevent that villain from doing harm to the country. A general condemnation will not deprive such a man of his power for mischief. Personally, I think that this House is to be congratulated upon the moderation of the Government in these matters.
That there was not more emergency legislation of this kind is, I think, creditable to the Government and to us as showing that there was no sense of panic actuating this House in those dark days of August last. Besides that, no Amendment would really touch the case to which the hon. Member referred, unless the Act were repealed. The Amending Bill does not touch it, and if I may say so, although I have no doubt there will always be hard cases, the case to which the hon. Member referred was irrelevant to the discussion in which we are now engaged. Of course, we have been living in abnormal circumstances. I wish myself that in the country the feeling of the state of war were a little less distant and a little less dim. Except in regard to the rise in prices I do not believe that the country realises in the least the conditions such as they are experienced in France and Belgium. Surely this is a case where everybody expected that the ordinary law of the land would practically cease to operate in great spheres of human affairs! The late Sir William Anson, who was for so long our teacher in constitutional wisdom here, in his book on "Law and Custom of the Constitution," said that for the safety of the community it may be necessary to supersede the ordinary course of law and the action of the Courts. He pointed out that we might have to live, as we are living in a sense, under martial law, and that martial law is the reserve force which the community retains and applies for its own protection.
There is one particular class in which I am interested who come in a peculiar way under the provisions of the Defence of the Realm Act. I mean those who are connected 300 with the newspaper Press. I do not think that gentleman of the Press ought to claim any greater privileges than any other class of His Majesty's subjects, and they do not claim them. But under the regulations that were framed, pressmen were particularly liable to prosecution, if not persecution. The 18th and 27th Orders touch them in a different way from that in which they do any other sort or condition of man. There were in some parts of the country arbitrary prosecutions by irate colonels. I have one in mind where a small man did suffer injustice, but I am glad to tell the House that it was soon rectified, and without the provisions of the present Bill. An undertaking was given by the War Office that no prosecutions of this sort before a court-martial should be undertaken except with the assent of those in high authority, who are able to judge of the gravity of the offence. So far as I know, every case which had a real base of injustice, of which complaint has been made, has been fairly met. Instances will occur where injustice is possible, and we cannot ask more in these matters than that we shall have a ready hearing. I want to ask the Attorney-General whether he does not think that, in the interest of pressmen as well as of other people, he should define much more clearly what the right of the subject will be under Clause 1 of the Amending Bill? A person ought to know what the charge against him is, and the charge ought to be stated in writing. That would be only in accordance with the Summary Jurisdiction Act, 1879. He ought also to be informed of his right to exercise the option to be tried before the Civil Courts. No doubt the Attorney-General will say that that is implied in the first Sub-section.
§ Sir J. SIMON
I meant to say, and I think I did say, that we intended to meet the point which the hon. Member is now putting by providing, in the regulations to be made under the Act, that at the same time that a man is given notice of the general nature of the charge, he should be given notice of his rights under the Section. I have not seen the draft yet, but I know that that is the intention.
§ Mr. LAWSON
I suggest that that should be embodied in the Clause. There can be no difficulty about it. I would prefer that the Attorney-General should put the Amendments on the Paper. With these Amendments, the class for whom I speak, who are deeply interested in 301 this sort of legislation, are satisfied with the Bill as now drafted. They are not afraid that there will be injustice, but they think that this Amendment is opportune, if not necessary. I think the whole country—and I agree with my right hon. Friend—will rejoice to think that we have come to a time when the Executive Government proposes that we should return more nearly to the normal state of things. Nobody can wish to live indefinitely under conditions of martial law. If the Government think it is safe that we should re-establish the old safeguards, according to the old precedents, well, then, I think it is a very happy thing for us to be able to do so. I do think that this Bill in its provisions does restore those safeguards, while, at the same time, I do not believe for a moment it will endanger the safety of the Realm in any particular whatsoever.
§ Mr. TREVELYAN
I am bound to say that I agree to some extent with my hon. Friend the Member for Sunderland when he says that this Bill was really introduced because of the strictures of eminent lawyers in the other House, who pointed out how seriously our ordinary liberties are infringed by the original Bill. I do not think that this House is to blame. I cannot agree with my right hon. Friend who spoke from the Front Bench that this Bill was in its original form, really passed by common consent in this House. What really happened was this: Last autumn the House of Commons quite readily, in its patriotic anxiety to make everything easy for the Government in the time of crisis, abrogated its ordinary right of criticism. [HON. MEMBERS: "NO, no!"] Really, the responsibility for this Bill lies with the Government, who, I am bound to say, should have understood how serious the infringement of our ordinary liberties was in the Bill in its original form. However, as it stands now, the Amending Bill is a retraction in the main which fulfils the purpose of restoring the rights of civil trial to British citizens. What we ask, and want, is that so long as the ordinary Civil Courts are sitting Army officers shall not be the judges of our lives and liberties. I agree that the Bill is, in the main, satisfactory. There are, however, one or two points of insecurity and limitation in it which I should like to see amended. I should like to refer to Subsection (5), to which the Attorney-General alluded. Under Sub-section (1) officers are no longer necessarily the judges of our 302 lives and liberties, but in Sub-section (5) it is left open to the Government, if it likes, to seize a moment of excitement and panic to reimpose the existing regulations. The Sub-section runs:—In the event of invasion or other special emergency arising out of the present War, His Majesty may by Proclamation forthwith suspend the operation of this Section.What might happen under that might be that the Government seizing, it may be, a momentary invasion of a very small kind, might impose martial law over a great part of the country. I do not see why they should not, adhering to their own principles, which they have just laid down, make the Clause to run something like this:—In the event of invasion or other special emergency …. whereby the Civil Courts are rendered unavailable.That is, I take it, the point upon which they agree: that where the Civil Courts are available a British subject should be allowed to resort to them, and I hope that they will be ready to accept an Amendment in that sense. In regard to Subsection (1) I am glad to hear from my right hon. Friend that he is going to secure in some way or other that in the case of a man who is arrested or charged, it shall be made clear to him at once that he can ask to be tried in the Civil Courts. That meets the one other point that I wished to raise. I should also like my right hon. Friend to consider further a question to which he referred in his speech. I do not see why this should be confined to British subjects, and I doubt if it is wise to do so. I do not see why neutral and allied subjects ought to come under special military jurisdiction so long as the Civil Courts are available. There may be, as the right hon. Gentleman suggested, some rather small practical difficulties; but I think the point of policy is more important than the practical point. What would the United States say if a citizen of that States were arrested, arbitrarily tried and punished under a law which we admit is not good enough for a Canadian—or French or Belgians punished under a law which we admit is not good enough for Boers or Indians who are British citizens? I am not pleading for it for enemy aliens. I simply ask for it as a reasonable concession to our Allies and to neutrals. I think it is illogical and unreasonable not to extend it to them. I have no other criticism of the Bill, but I hope my right hon. Friend will, as the House accepts very readily the general principles of the Bill, accept some alterations.
§ Sir RYLAND ADKINS
I agree with much that has fallen from my hon. Friend. I should like, first of all, to thank the right hon. Gentleman the Attorney-General and the Government for bringing in this Bill, and for bringing it in in a form which will admit of expansion and amendment, which I hope the Government will be prepared most carefully to consider. I quite agree with the remarks that have fallen from the hon. Member on the opposite side of the House, who in his speech, said that this is not the time for elaborate research, and certainly not the time for rhetoric in regard to the freedom of the subject. At the same time we ought to bear in mind that the action of the Government and of this House—for as the Attorney-General said, everyone of us had a share in passing this Act—is entirely without a parallel in the history of our country. A hundred years or more ago, when this country was in many respects engaged in a greater struggle and more dangerous to the State than to-day, there was no abolition of trial by jury in England. That was at a time when there was quite a considerable section of the people opposed to the war, and a very much larger section of the people rightly exasperated by the methods of repression which will always be a blot on the memory of Mr. Pitt. [HON. MEMBERS: "No, no!"] In those days, when the position was much more difficult, there was nothing precisely like this Act which was passed a few months ago. Therefore, when the Government comes forward, as they do this afternoon, to restore the rights of civil tribunals, I think His Majesty's Executive may feel sure that their action will be welcomed—and is welcomed—in all parts of the House.
What I would like to point out to my right hon. Friend is this: Is it necessary, on the principles he has laid down, and in accordance with the arguments that he has used, to limit the Bill to its present form? His argument about trial by jury in a matter of serious crime is that it may lead to delay. He proposes to guard against that by taking powers to lay the venue of the trial wherever the Government think well. That that is done is no argument for delay. Under this Bill, let us say, a man accused of a serious crime may ask to be tried by jury. You are, by your other provisions, enabling that to be done without delay. If that can be done without delay where a man asks for it, what need is there to put upon anybody the choice of asking for it? Why not let 304 all these cases as a matter of course come to be tried by jury, provided you have the regulations, to which the Attorney-General referred, which would secure that that trial would be prompt, that there would be no delay dangerous to the State in any case? I am not sure that my right hon. Friend, lucid as we all know him to be, quite explained with sufficient precision why any delay of a dangerous character is involved in these charges being tried by the Civil Courts. If the person charged with an offence of a serious character under this Act cannot be dealt with by a Court of Summary Jurisdiction, the alternative is a court-martial, or, if he chooses to be tried by a Civil Court, by a jury.
Nobody is asking that a man charged with so serious an offence as that should be lightly, or at all, let out on bail. He should be kept in custody, and so would be unable to continue or to repeat his offence until such time as the proper Civil Court could sit and try him. Therefore, surely if you have the power of having the charge taken expeditiously, the whole argument based on the suggestion of delay is gone, and what possible reason remains for putting any person charged with these offences to his choice as to whether or not he should be tried by jury? In other words, what need is there at all to supersede the Civil Courts after you have made provision for their acting promptly in these matters? The mere fact that a man has to be asked to be tried by the Civil Court is dangerous and has a tendency to supersede judicial authority and to exalt the military under circumstances, by the admission of the Government, in which there is no need. I understood the right hon. Gentleman to say that one of the reasons for keeping courts-martial for these cases where a man did not choose to be tried by jury was to keep alive the machinery of military justice which had been created under the Act. Surely that machinery is not subject to rust and decay because it is not used for a certain number of months or in a certain number of cases? If you have the machinery there where it is necessary, surely it will make no difference whether it is used once a week, or whether there is no occasion ten use it for months?
When we come to the Committee stage, I, for one, will, if necessary, table an Amendment—and I should certainly support an Amendment—which will restore trial by jury absolutely in these cases, 305 subject to the necessary provision for promptitude. If that be a danger, I would then ask that the option should be the other way, and that a man should be tried by the Civil Courts unless he himself asks to be tried by court-martial—for the reason, it may be, that that may possibly be more prompt. May I support—I think I see the difficulties of the case—what has been said by my hon. Friend who spoke last with regard to the extension of this Act to alien subjects and to neutrals. Surely one of the elements in the great influence of England in the counsels of Europe is the reputation of her judicial system, and the fact that the benefits, rights, and privileges of Englishmen under it have been extended to the subjects of friendly nations. I believe in this great struggle, in which we are called to act as closely as possible with our Allies, we should gain more by this proof of our confidence in their subjects than we should risk by the possible cases to which the Attorney-General referred. The other main point of the Bill is the power taken by the Government under Sub-section (5) to repeal this Bill at a moment's notice over any part, or the whole of the country, and for as long as they like. This does, indeed, remind one of the fact that this is an unheard-of power to be given to the Executive of this Government—unheard of at any time, so far as I know, within English history. Everyone is willing to give the Government the powers necessary to save the State, but is this necessary? We are told that the country might be invaded, and then it would be impossible for the Civil Courts to act. I would support my hon. Friend in his suggestion that this should only apply when the Civil Courts are not available and cannot be available. The only time when military law ought to apply to civilians is surely only when the Civil Courts are impossible.
And would it not be more in accordance, I would not say with our traditions, but with those civic rights on which we pride ourselves, if a decision on that point were come to, not by the Executive Government, but by the head of the judiciary? It is impossible, and even inconceivable, that within half a day any large part of England could be occupied by the enemy. If they ever landed at all, if they landed a large force, even if they landed with all possible means of transport, there would still elapse a number of hours before their control of any considerable part of England could destroy the machinery of the 306 ordinary judiciary of the country. Therefore, I would ask the Government whether they ought not, in the first place, to accept what my hon. Friend suggested to us, namely, that it should only apply when the Civil Courts are not available; and, in the next place, that it should only be put into force on a receipt of a certificate from the Lord Chief Justice, as head of the judiciary of this country, that Criminal Courts cannot be held, or that criminal justice is at an end for the time being. If you had some declaration as to the inability of the civil justice of the country to be kept in being from the head of those responsible for civil justice, then the practical result would be the same, and you would have safeguarded the inviolable right of Englishmen to be tried by civil justice except when that is physically and practically impossible. Those are additions and modifications to this Bill which I would earnestly press upon the Government. It is not a case of this Bill being sought to be amended by Members of this House or anyone in the country out of sympathy with the efforts, the most powerful and successful efforts, of the Government to prosecute the War and maintain the integrity of the country. We all support the Government to the utmost of our power in those objects which are dear to us and dear to them, but we do ask them to show that they are prepared to restore to the people of this country the right of their ancient and civil tribunals, to give it in the largest measure, and to extend it if possible to the subjects of friendly Powers, and not take it away by a stroke of the pen of the Executive, but only when the heads of the judiciary consider it impossible any longer to carry on that civil justice, which we should surely have as long and as free as possible.
§ Mr. BUTCHER
I am sure the House is grateful to the Attorney-General for the very clear and succinct way in which he moved the Second Reading of this Bill. But there is one point in the right hon. and learned Gentleman's speech, and one only, to which I wish to draw attention. He referred in an almost semi-apologetic fashion to the fact that the benefit of this Bill was confined to British subjects. I agree with what has been said by some hon. Members on the other side that it might be desirable to extend the benefit of this Bill to members of those States who are fighting with us at the moment as our Allies, and certainly to that I personally 307 would have no objection whatever. But what I should venture to suggest to the Government is that there are some British subjects who are not entitled to the benefit of this. There are persons, nominally British subjects, who are of Austrian, German, and Turkish nationality, and who have been naturalised within a very few years, or perhaps within quite a recent time. I say that those persons, although they are entitled to call themselves British subjects, ought not to claim the benefit of this Bill, except under some restriction. In the first place, I should say that no person of German, Austrian, or Turkish nationality ought to be entitled to get the benefit of the Bill unless he can prove two things—first, that he has been naturalised before some recent period, say, two or three years; and, secondly, unless he can establish that he has definitely abandoned his original nationality. Let me take these two points separately. It is notorious that many persons of German and Austrian nationality, especially German, have been naturalised within an exceedingly recent date, some of them even since the commencement of the War—chauffeurs and I dare say many others who could be mentioned—and I do submit to the Government that here you are giving distinctly British privileges in accordance with British traditions and the freedom which Britishers have won. Why should you give that right to persons of foreign nationality whose fellow-subjects are fighting against us at this moment, unless they have been naturalised for some considerable period, and have thereby earned the protection of those laws which are purely British?
Therefore, I would suggest that the Government might very well confine the privilege given by this Bill to those foreign persons who have been naturalised not less than two or three years. Again, there are many cases—and, indeed, the Home Secretary told us about it this afternoon—as to which it is difficult to say whether a foreign subject who has been naturalised in this country has lost his original nationality. If he has not lost his original nationality, is there any reason why he should claim the benefit of this Bill? I grant you, if he can come and say, "I have been naturalised two or three years since, I have divested myself entirely of my foreign nationality, and I have done my very best to become a British subject, 308 not merely in name but in substance," then he might be given the benefit of this Bill. I suggest the words "British subject" are in one respect, perhaps, a little too narrow, because we ought to include in the benefits of the Bill subjects of the Allied Powers, and in other respects it is somewhat broad, because it gives to those who have done nothing whatever to deserve them the characteristics and rights which properly belong to British subjects.
§ Sir GEORGE TOULMIN
I should like to join in the recognition which has been given to the Government for its action in introducing this amending measure. It is a great improvement on the Bill, which was passed last Session, and restores the safeguards for the administration of justice. I think it would be well for the Government to consider the suggestion which was made by the hon. Member for Mile-End (Mr. Harry Lawson), that the provision that an offender should be informed of his right to trial, secured by this Amending Bill, should be embodied in the Bill, and not left to the regulations. I cannot join with the hon. Member for Elland (Mr. Trevelyan) in throwing upon the Ministry alone the responsibility for the previous main measure. The Executive was bound to ask for those powers which it thought necessary, and it was for the House to take the responsibility of granting them, with or without safeguards, as it might consider necessary. We were indebted to the great constitutional lawyers in another place who awoke the public conscience to the danger of hasty legislation, breaking age-long traditions of liberty. The hon. Member for Sunderland (Mr. Goldstone) seemed to think this was an argument for the hereditary Chamber. I do not at all agree with him because each one of the voices which were raised in another place was that of a statesman who had learned his politics in this House, and not what might be called a typical member of that body. We ought, indeed, to safeguard the great principle of the separation of the administration of the law from the Executive, so that justice may be administered by Civil Courts so long as those Civil Courts are available, and that right should only lapse when the country may be considered to be in mortal peril, and it should be resumed at the earliest moment when the Courts are available.
My attention was drawn more especially to this subject by its relation to the Press, 309 but I consider that that should be entirely subordinate to considerations of public welfare. I would, however, point out that the Press is specially open to interference, seeing that every line is open to the public and every word is on record. However, for them I think no special privilege should be claimed, and I make no claim at all of that character; but I do think they are entitled to demand two things—fair opportunity of proving their innocence, and equal administration of the law. As to the first, this change of the law is entirely beneficial, both to persons charged and, I think, also to the Army and Admiralty authorities. The Defence of the Realm Act was passed by this House, but under that Act many regulations have been made inventing new crimes and offences, and "an offence against these regulations" may even involve penal servitude for life, or actually the death penalty. The penalty may be limited if an offender proves absence of intention to assist the enemy or prejudice recruiting and other matters. But surely a Civil Court is much the better judge of the "intention" of an offender.
The great body of Regulations which have been issued appear to me to show the impress of the Army Council and the Admiralty. A military authority is to put them in force; a Military Court is to adjudicate upon them. It is a very heavy burden at a time when they are suffering very great stress. It may be inevitable in a conquered or occupied territory, but where the Civil Courts are available I hold that it is for the benefit of the military authorities that they should be relieved from this duty, and the Civil Courts, with all their traditions and all their safeguards as to procedure and admission of evidence and various other matters, ought to be open. I do not complain of the administration of the law and the enforcement of the regulations; in fact, I should rather say that, if we have to complain at all, it is of the laxity of the enforcement of the regulations that have been made in some cases rather than the severity. Possibly the substitution of a Civil Court may lead the Army Council and others who have to decide as to prosecutions to be more courageous in preventing unequal recourse to the Censor. When the military authorities are the lawgivers, the prosecutors, and the judge and jury, they may well hesitate to challenge public opinion by 310 prosecutions. I wonder whether it would be possible for the measures to secure obedience to regulations to be carried further than they are in this Bill, and whether the Army and Admiralty authorities might be further relieved of the duty of deciding in these matters. This is surely becoming more and more important as our shores are becoming more closely girdled by war operations. Take the points connected with the operations of submarines. Information as to submarines is not to be given until it is released by the Censor. That is one of the cases for which prosecutions will take place under this Act. The Censor may be asked to release the news of a submarine raid on some coast. This is a case which has come within my knowledge in which the news was courteously refused by the Censor, but another paper published about half a column of the news, and I presume that particular paper had never asked whether it was of military importance that that news should not be published. I wonder what steps were taken to meet out justice between those two papers. I have not heard of any court-martial which has been held in the second case.
There is another case which has come under my notice. There was a court-martial on some military offence which was held in Edinburgh. The Edinburgh "Evening News" asked leave to publish a report of this news. No reply was given, but the news was published in the "Mail" on the following day, I presume without leave having been asked for its release. News which had been refused to South Shields has been published in Newcastle. This is not a question of Liberal or Conservative. There are cases in connection with the "Daily News" and other papers being refused news, and they would not put their own personal case before this House. Nevertheless, they have been refused news, and that news has been published in the "Mail" and in the "Times." Persons the most blatantly loyalistic are often most careless in these matters, and the most offensively self-righteous in defending public rights by publishing news suppressed elsewhere. I take it that these cases are really much more fit for a judge and jury than for a court-martial, and it would please me much better if the responsibility for securing the proper carrying out of these regulations were entrusted to some other body than the Army Council or the Admiralty. Let them decide as to 311 the necessity, or otherwise, for the suppression of news. Let them be the sole judges in this matter. As a member of the Press I would support them absolutely, and I would not challenge their decisions at all. I do not think pressmen in general are the best judges as to whether news ought to be given or not. This is a matter in which the Admiralty and the Army Council ought to be absolutely responsible, and when they come to a decision I think the whole of the Press ought to be made to adhere to that decision, and they ought to submit to the regulations which have been made for the submission of such news to the Censor. If the publication of certain news is so indifferent that after publication has been refused a breach of secrecy is considered not worth noticing, then I think that news ought not to have been withheld. If publication is so indifferent let it be published, and do not leave it open to the most daring pressmen, who disregard official requests, to have the opportunity of gaining kudos from the public, and obtaining an unjust reputation of enterprise in securing news. I hope that this Amendment of the law will tend to secure justice when prosecutions are undertaken, and may lead to an improvement in the administration of the Censorship.
§ Lord ROBERT CECIL
The hon. Gentleman who has just sat down has made an interesting speech, but I think it is one which touched only slightly upon the general course of this Debate. There is, of course, a great deal to be said about the administration of the Press Bureau, and whether prosecutions should, or should not, be directed by the Press Bureau, or rather by the Army Council or the Admiralty, or somebody else. But I do not know that such questions are very closely connected with this Bill, because there is nothing in this measure which deals with that side of the question at all. I think it would be for Mr. Speaker to decide whether an Amendment of that kind would be in order under this Bill. I wish to say a few words about the general principle of this Bill with which, on the whole, I am in hearty agreement. I am afraid that I am not quite so devoted a worshipper of trial by jury as some hon. Members opposite. I do most thoroughly agree that nothing would be more disastrous than that we should have anything like a permanent subjection of this country to military justice. It is not 312 because I like it more that I have less affection for trial by jury, but in times of popular excitement this is a matter to be very carefully considered when it is argued that the liberty of the individual is best secured by unrestricted trial by jury. If hon. Members opposite will cast their minds back over the least creditable chapters of our judicial history, I think they will agree with me that they have always been enacted under trial by jury. Take, for example, the Popish plot and the Bloody Assizes. In both those cases there was no suspension of trial by jury. The same also applies to the prosecutions under the Six Acts. I am sure that at the present time no one wishes to return to the Six Acts which many people regard as a very serious period of judicial tyranny. They were carried out entirely by the machinery of trial by jury.
I want to say, as a caution to hon. Members opposite, it is not quite certain that trial by jury is the real palladium of English freedom which some people think it is. I feel myself that if I were accused unjustly under the Defence of the Realm Act I should have some little difficulty in deciding whether I would rather be tried by a really well constituted and strong Military Court rather than by a jury inflamed, as it probably would be, under such circumstances, by burning passion and subject at least as much to panic as officers of the Army would be. I think very strongly that the less exceptional legislation you have in this country the better. I am very glad the Government are consulting the Naval and Military authorities in this matter. I feel that what I have said just now applies to the speech of the hon. Member for Middleton (Sir W. Adkins). He was very anxious to have trial by jury everywhere, with a provision in Sub-section (3) providing that anybody might be tried anywhere. I confess in that matter that I am in sympathy with what was said by the hon. Member for Sunderland (Mr. Goldstone), who said that the danger of injustice seems to be much greater if you have trial by jury a long way from your home, where you would find difficulty in getting hold of your witnesses and where you could not get them to the Court. I think it would be preferable to be tried even by an inferior tribunal actually in the place where you live. I should very much regret a change in the law such as the hon. Member indicated. I think persons charged with these offences 313 should be given the opportunity of being tried in the locality where people know them and where they can get hold of their witnesses without difficulty rather than being placed on trial at a Court a long distance from their homes. I hope the Government will give very careful consideration to the point made by the hon. Member for Sunderland and see if they cannot meet the point by resorting to special commissions if necessary, which I imagine will come within the constitutional competence of the Crown. For this purpose a short clause might be introduced requiring that a person might be tried in a place where he is known.
I very strongly hope that the Government will assent also to the suggestion made by my hon. Friend the Member for Tower Hamlets (Mr. Lawson), that in the Bill itself shall be placed the obligation on the part of the authorities to inform the person accused of his rights. That is done, I think, in cases under the Summary Jurisdiction Acts, where a man is charged and where he is told that he need not say anything unless he likes. That is all put into the Act, and it is far more satisfactory than putting it into the regulations. I want to say a word or two about the argument used by the hon. Member for Elland Division (Mr. Trevelyan). He proposed that Sub-section (5) should be limited to the case where the Civil Courts were not in operation. If you do that you will take away the whole of the Defence of the Realm Act where the Civil Courts are not in operation, as the Attorney-General pointed out quite truly, by the ordinary constitutional rights, because where the Civil Courts are not in operation martial law does operate and courts-martial come into existence. The hon. Member for Middleton can scarcely have reflected upon the serious nature of the change he recommended, even in the case where the certificate of the Lord Chief Justice is necessary. Under the guise of strengthening the Executive the hon. Member really weakens the right of the Executive in a way which would be totally impracticable, because the Civil Courts would not be in operation under the assumed state of affairs. The district would be actually in the occupation of the military authorities and nobody would pay the slightest attention to the Lord Chief Justice or anybody else under those circumstances. Military authorities would have to keep order as a matter of military necessity.
§ Sir RYLAND ADKINS
The certificate of the Lord Chief Justice that the Court should not sit would apply to that district only, and there would be no danger of it being applied to those parts of the country where the Courts could sit.
§ Lord ROBERT CECIL
I think that in a time of invasion or of a great emergency of that kind it would be very likely desirable to put the country under martial law in large districts which were not immediately the subject of military occupation and in which for many purposes the Civil Courts would go on. That is really the whole purpose of this provision. Suppose the Germans invaded us and the Government had reason to suppose there were disaffected persons in other areas outside military occupation who might greatly impede our operations and be a serious danger to the State. That is one of the cases undoubtedly aimed at. It is a case where you want to punish the man rapidly and severely in order to prevent anything like a serious danger to the armed Forces of the Crown; and to confine the operation of this Sub-section to those parts of the country where the Civil Courts had ceased to operate does seem to me a very serious limitation on the value of this provision. It would amount, it seems to me, to a complete repeal of the previous Act which was passed. I should be quite willing to assent to that as soon as the military and naval authorities said that in their judgment it would be safe, but until that did happen I do not think this House would be wise in attempting to place such difficulties in the way of the defence of the country as such action would undoubtedly create.
§ Mr. WALTER ROCH (indistinctly heard)
I am afraid that I hold more old-fashioned views as regards trial by jury than were contained in some of the remarks expressed by the Noble Lord, and I think he will agree with me that many eminent judges have placed much more complete faith in juries than in their learned friends. It may be that they knew their learned friends very well.
§ Mr. ROCH
Judging from the Debate this afternoon, there is a complete misapprehension as to the views held by Members who are urging the restoration of the civil authority and the Civil Courts. It is not the wish of those Members that any malefactor should get off. The most 315 curious assumption seems to have been made that if you have a civil trial in these cases, people who should be punished will not be punished. That is not the view which we entertain, or indeed which we believe will be entertained by the civil authority. We think that the civil authority will administer justice with complete fairness and with as heavy a hand as might be done by the authorities of martial law. I wish the Attorney-General had taken the bold step and instead of adopting this halfway measure had adopted the Bill introduced by Lord Parmoor.
§ Sir J. SIMON
The Bill introduced by Lord Parmoor does not go as far as this Bill. Lord Parmoor's Bill was limited. It entitled persons to be tried by jury if the offence was one under the criminal law of this country; but as most of the offences under the regulations of the Defence of the Realm Act are new offences, it follows that Lord Parmoor's Bill does not cover anything like the same number of cases as this Bill covers.
§ Mr. ROCH
I need hardly say that I do not want to argue a legal point with the Attorney-General, but I have looked through the Bill with my hon. Friends, and I am told that it will make punishable anything which is against the law of England, and I take it these regulations must be taken to be the law of England. The distinction I draw between this Bill and Lord Parmoor's Bill is that Lord Parmoor's Bill assumed that everybody as a matter of right could get trial by the civil authority, and did not assume that they should first go before the military authorities, and it then be open to them to exercise the option whether they should go before a civil tribunal. The Bill, as it stands, by no means does complete justice in the way of giving an appeal to the civil authority. Under the summary jurisdiction powers, when a case under these regulations comes before the magistrates, the right of appeal to a jury is gone. I wish the Attorney-General would go further, and, as has been urged from this side of the House, make this right of appeal applicable to all. I go further than anybody who has spoken this afternoon. I cannot for the life of me see why even an alien enemy as well as anyone else should not have a fair trial according to our ideas. I do not think that even the hon. Member for York (Mr. Butcher) would wish a naturalised chauffeur to be condemned 316 unjustly. I do not think he would say there is any privilege in the matter of fair trial which should not be given to anybody irrespective of nationality. The Attorney-General, indeed, rather suggested that the British tradition was that British justice should only apply to Britishers. I do not like to argue principles of law with the Attorney-General, but, according to my reading of the' traditions of British justice, it was applicable to all. On the historic occasion when that question arose Lord Mansfield declared that British justice was for all on British soil. A fair trial should be given to everyone who comes under the law of this country.
There is one point which arises under the Defence of the Realm Act which has not been alluded to this afternoon. It is obvious to people who have read the regulations under the Act that the widest powers are given to the military authorities to requisition property and remove people out of certain districts. No one suggests that is not a power with which they should not be armed, but surely they were armed with it already under the common law of the country. Under the common law of the country they are at liberty to do anything which the requirements of the defence of the realm require. Let hon. Members mark the difference. Under the common law, while those powers were given to the military authorities, they were safeguarded by the fact that if they were not exercised in good faith and in a reasonable and proper manner the people who exercised them were subject to the civil authority of the Courts. That safeguard has now gone, and here we have the complete rule of military law.
While I am not suggesting there is any danger that as a common case they will not act properly, still the object of legislation is to provide for the exceptional case and to give power to deal with the exceptional man who does not act in a proper way. Now, if these very wide powers are not exercised properly, the military authorities have complete immunity. Therefore, one of those valuable privileges and safeguards which will only require to be exercised as a reserving force to prevent these things is to be done away with, and there is complete power given to the military authorities which the wisdom of the common law has never given. There is another detail to which I should like to draw attention. 317 In Sub-clause (5) the Attorney-General asks that he should have power to restore martial law in the event of invasion or other special emergency. Would that special emergency law arise, say, in the case of a strike? If it is a case of invasion we should all agree that he should have every power he requires, but people would hesitate a long time before they would say that, as a matter of policy, the right way and the wisest way in the long run to deal with a strike would be to declare martial law under the powers which this Bill gives.
§ Sir J. SIMON
I have no doubt that a strike would not, in itself, be a special emergency under the Clause. It has got to arise out of the present War.
§ Sir J. SIMON
I am only expressing an opinion, but a strike, whether it arose out of the present War or not, would not be within the Clause. General civil commotion, or a riot, or some immediate apprehended danger, is what is meant.
§ Mr. ROCH
If that is clear, I have not a word to say. I only wished to call attention to a doubt which had arisen in my mind with regard to the matter. I was rather sorry at some of the things which the right hon. Gentleman said in his speech. He based his whole argument for full complete martial law on two points. I would respectfully remind the right hon. Gentleman that necessity has been the argument used by every tyrant when he wanted to increase his power, and I have no doubt if he had been an Attorney-General in the time of Charles I. he would have used the argument of necessity. Another argument he used in favour of this martial law was rapidity. I cannot see what is the necessity for rapidity. I should have said that the advantage of rapidity is much more real for the prisoner than for the man who prosecutes. Under our ordinary law, if a malefactor is arrested he stays in prison, if it is a serious case, until he is tried. Therefore, the whole advantage of rapid trial is entirely on the side of the prisoner, and not the prosecution at all. I hope that even now the Attorney-General will do all he can to make this Bill a complete going back to the old status quo, and that he will give a complete restoration of the civil authority. 318 The plea of necessity is all very well, but we cannot get away from the fact that, whether we do a thing from great necessity or not, it is a precedent for the future, and a serious one. It may be that the necessity is such and so great that there is no other course open to us, but, unless there is the gravest necessity, I do hope that, so far as possible, precedents of this nature will not be made. After all, this will be a precedent. We all know that when this War is over there may be before us serious labour troubles. Does anybody doubt that many things like this which we are doing now will be quoted, and I am afraid will be used as a means of oppression? It is because you cannot avoid making these things precedents that I do earnestly hope, while the gravest necessity may make the making of these serious precedents a thing which must be done, the Attorney-General and the Government will, as far as possible, shrink from making precedents for oppression, which may be used in a fatal way.
§ Mr. MACMASTER
I wish to associate myself with those who have paid a sincere compliment to the Attorney-General for the lucidity and clearness of his explanations of the Bill; but there is a matter which to me is a subject for even greater admiration, and that is the ingenuity with which he screened the actual situation in which we stand. What is the actual situation? We find now, as has been found elsewhere, that a grave mistake has been made, and that, in the haste and hurry with which we passed legislation soon after the commencement of the War, we seriously invaded some of the most valued and invaluable constitutional rights we possess in this country. We did not make the discovery ourselves—let us do this justice to the other House. The discovery was made there, that this serious invasion had been committed on our constitutional rights, and that the English Constitution had, to that extent, been seriously impaired. In summing up the advantages which he claimed for this amendment of the Act the Attorney-General said it preserved the machinery for securing military justice. That is undoubtedly so. It also avoids delays, but subject to one limitation which is found in respect of the last portion of Sub-section (3), in which there is an enlargement of the ordinary right, a prisoner to be tried either where the crime was committed, or where he was arrested. There may be a change of venue. The concluding 319 words of the Sub-section are, "Or to which he may be brought for the purpose of trial" are objectionable and unnecessary. It need not be assumed from those words that he would be taken for trial to a remote part of the country, yet there is the possibility of the exercise of such an arbitrary power.
The third advantage claimed by the Attorney-General for the Amendment is that it restores the right of trial by jury. After all, that is the main object of this Bill. It has been found that what has been hitherto supposed to be a great guarantee of the freedom of the subject—fair trial before judge and jury—has been parted with, and therefore the Attorney-General very properly proposes to restore it. I am not one of those who altogether agree with the Noble Lord (Lord Robert Cecil) in the views he expressed with regard to the system of trial by jury. After a somewhat large experience of juries, I am of opinion that whatever may have been the eccentricities, or exhibitions of passion or prejudices in the past, it may be said that in these more modern liberal-minded times, under the direction of a just judge, we are still safe in the hands of a common jury. That question is not seriously involved, however, because there seems to be a consensus of opinion in the House that there should be a restoration of that provision in the Constitution. But then we come to consider to whom this restoration of privilege should apply. The first Clause says to anyone "being a British subject." I would add, "and not owing allegiance to any foreign country." Possibly a qualification of that kind would enable us to get rid of the difficulty which has been suggested here, that it is possible for a man to become a naturalised British subject and yet retain his allegiance to his own country.
I have considerable sympathy with some of the suggestions that have come from the other side. One was that we might extend trial by jury to citizens and subjects of the Allied Powers, and possibly to those of neutral nations. I would most certainly exclude from this privilege alien enemies—indeed, I do not think an alien enemy would care to claim it. He would think he would obtain far more justice from military and naval men than from a jury liable to prejudice against an alien. On the whole, I think the Bill is a necessary Bill and a thoroughly just Bill. 320 I do not at all take exception to Clause 5. It contains very large powers, but they may be very necessary powers. To suspend the Habeas Corpus Act in this country would, I believe, require the passage of a special Act of Parliament and the assent of the two Houses as well as of the Crown. If that be so—and I do not commit myself to that opinion—then we are here in advance giving powers by this Bill which are more extensive than those now required to suspend, for a time, that great bulwark of English liberty—the Habeas Corpus Act.
§ Mr. ELLIS DAVIES
I make no objection to any of the regulations which have been made under the Defence of the Realm Act, or to the punishments which may be imposed. The punishment of death may be inflicted by court-martial for one of the offences under these regulations, and even to that I do not object. But I think it is not quite clearly understood in the country what are the crimes with which the courts-martial are to deal. They are not crimes in the ordinary sense of the word, they are offences by civilians against these regulations. Very stringent provision is made for the detection and prevention of offences. To that I do not object, but I do object to the constitution of the Court by which these offences are going to be tried. As has been stated by the hon. Member for Pembroke (Mr. Roch), we object to the provisions for trial by court-martial, not because we are anxious or desirous in the slightest degree that there should be any doubt as to the effectiveness of the law to punish the offender, but our objection is to the Court and particularly when under the present regulations. If you are tried before a Court of Summary Jurisdiction, there is an appeal to Quarter Sessions. But when the nature of the offence is serious and the case is tried by court-martial, apparently the decision of that Court is to be final.
We further object to the constitution of the Court. It is to be composed of officers who have neither knowledge of the law nor experience nor fitness for weighing evidence such as we naturally expect in every Court in this country. In the case of County Court judges and stipendiary magistrates it is necessary that the persons appointed should have had several years' experience. An applicant for such an office must, in the first place, be a barrister, and then he must have been in practice several years. If cases triable before stipendiary magistrates and if civil 321 actions tried in the. County Courts necessarily come before men whose appointment involves such qualifications as I have stated, there is every reason why the cases dealt with under this Bill should not be submitted to the Court of officers, particularly at a time when passion, feeling and prejudice is running so high. As a matter of fact, at the present moment we are handing over to military officers without any training or peculiar fitness the power of death over civilians in this country. The Noble Lord the Member for Hitchin (Lord R. Cecil) suggested that he had no confidence, or rather not the necessary confidence, in a jury system.
For several months a Committee, presided over by Lord Mersey, sat to consider this question of trial by jury. I was a member of that Committee, and I assert that not one single witness who appeared before us suggested the abolition of the jury system in criminal cases. Not one single witness, either from the bench or from the legal profession, made such a suggestion, and the Committee, in its report, certainly did not countenance the idea of the abolition of trial by jury in criminal cases. The two main reasons urged by the Attorney-General this evening in support of the Bill were, the question of national security and the necessity for a swift and effective method of dealing with offenders. I have never been quite able to understand how, in a time of great stress, when the services of all our military officers are needed at the front or for training troops, they can find the time necessary to exercise judicial functions. Then as to the swift and effective dealing with and punishment of offenders. Surely it is perfectly open for the Government, by special legislation, to authorise County Court judges, or stipendiary magistrates, or, indeed, High Court judges, to go round the country, if necessary, to exercise special powers and deal with offenders under this Act. If it is urged by the Government that the jury system is not the best system adapted for the purposes, I have no objection whatever to vote for a measure which would empower the Government to appoint either judges or barristers of experience and standing to act as special commissioners to deal with cases of this kind.
In my opinion, there is a real and very serious menace to the liberty of the subject embodied in this Bill. We are establishing a precedent in particular circumstances, find, later on, when there is no War, and no prospect of invasion, that precedent 322 may be appealed to in cases of riot and civil commotion. I hope the Government, before the Bill leaves this House, will come to the conclusion that the better method of dealing with these offences would be to give power to the High Court judges to go on circuit and hold Assizes even when, in ordinary circumstances, Assizes would not be held.
I would like to call the attention of the Attorney-General to Sub-section (1) of Clause 1. The Bill provides at the present moment that the accused shall be entitled "within four clear days from the time when the general nature of the charge is communicated to him," to claim to be tried by a Civil Court. The important question arises within what time that charge is to be communicated. Do not let us forget that the person is going to be arrested by the military authorities on the order of a military or naval authority, and it is very important indeed to us civilians to know within what time the authority which has ordered the arrest must also define and state the particulars of the charges which are going to be made against the accused. I am not dealing with a hypothetical case. There was a case recently at Hull where a British citizen had beer, arrested, had been in custody for some weeks, and was unable to obtain particulars of the charges to be brought against him. Ultimately application was made to the Court under the Habeas Corpus Act, and I am sorry to say the Civil Court refuse to interfere, although that British citizen had been for some weeks under arrest, and had not obtained any definite information as to the charges against him. I hope the Attorney-General will, before the Bill leaves this House, intimate that he will be prepared to accept the Amendment which I shall move, to the effect that the charges must be formulated against the offender within a certain number of days.
Attention has already been drawn to another point which is of very great importance indeed to the poor man, namely, that the venue of his trial may be changed. My experience of the criminal law is not very extensive, but I have had some experience of the administration of the law in this country, and nobody who has been concerned in any case where the Crown has prosecuted has failed to realise to the full the disadvantages to which the accused is subject under present conditions. Money, talent, the production of witnesses and the finding of evidence;—all 323 these things are at the command of the Crown; but, on the other hand, the poor citizen has neither the time nor the money nor the friends by which that evidence or the witnesses can be produced. If to those disadvantages, which are incidental to his financial position, there is to be added the possibility of a change of venue, the poor citizen will have a very substantial ground of complaint against the Government. In regard to the right reserved to the Crown to abrogate the right we are going to give under this Bill merely by proclamation, the speech of my hon. Friend the Member for Pembrokeshire (Mr. Roch) deserves the serious attention of the Government. The right should not be vested in the Executive to decide whether or not an emergency has arisen when the right of the citizen to a civil trial should be abrogated. A very valuable suggestion that has been made is that some certificate or some agreement on the part of the head of the King's Bench Division should be obtained before the Government decide to put it into execution.
§ Mr. NIELD
I disagree entirely with some of the observations of the last speaker so far as regards the prejudice a prisoner is under when the Crown prosecutes. Nowadays a prisoner has every possible facility, at the public expense, to have counsel to represent him and to get his witnesses. I see the hon. Member shakes his head, but those of us who have to deal with these matters constantly have these cases before us.
§ Mr. ELLIS DAVIES
It is purely optional on the part of the Court to allow a prisoner to have counsel.
§ Mr. NIELD
In no case is it refused if a primâ facie case is presented. Of course, if a prisoner holds his tongue at Petty Sessions and so conducts himself as to indicate that he has no answer to the charge, it is possible that when the depositions go to Quarter Sessions and an application is made that aid should be given to him at the public expense, it is naturally viewed with grave suspicion; but notwithstanding that, if the charge is a very serious one, the aid is forthcoming. I entirely disagree with the observation that 324 a prisoner is under any difficulty in that respect. I am not prepared to quarrel with the proposals of this Bill in the main, because until matters have advanced to a stage much further on than they are at present, extraordinary powers should not be given to tribunals other than the civil tribunals of the country. I was prevented by other duties from being in the House when the Attorney-General spoke, but I should have been glad to have heard whether he offered any explanation as to the number of courts-martial already held in this country. So far as one can judge, a good many of the offences which are the subject of proclamations under the Defence of the Realm Act have already been dealt with by civil tribunals, and a good many of them in Courts of Summary Jurisdiction, and in respect of offences which might have involved heavy sentences.
I notice that the Bill does not propose to interfere at all in cases which come under Courts of Summary Jurisdiction. I wish to take exception to the idea indicated by some Members that justice is not possible in the case of a Military Court. No doubt the House remembers that every Military Court has its Marshal, its representative of the Judge Advocate, to advise the Court. I myself was present at almost the whole of the proceedings when the spy Lody was tried, and never was a tribunal conducted with more regard to the rules of evidence. It is true that there were eminent counsel on both sides, but the whole trial was conducted precisely in the same way as it would be before a judge of Assize. The rules of justice are the same whether the Court is a military or a civil one, and the public mind ought to be disabused of any suggestion that a different code is administered, so far as regards the justice meted out to prisoners.
Observations have been made with respect to the jury system. I am inclined to share the view held by the Noble Lord (Lord Robert Cecil) that juries are not always immaculate bodies before whom you can try cases. Although there is no demand to abolish the jury system in any case of criminal trials, I am not sure that we cannot get some indication, from those cases where a prisoner charged before a Petty Sessions Court has a right to go to a jury, of what the prisoner thinks of the jury system when so many of them elect to be tried summarily before a Court of Summary Jurisdiction. So far as civil cases are concerned, it is common knowledge that even when a case is down for 325 hearing by a jury it frequently happens that by consent of both parties the jury are discharged before being sworn.
However, I agree that in these very exceptional circumstances we ought not to abrogate the right to a trial by jury as a main principle guiding the judicature of this country. With regard to the Bill itself, there are one or two points which are Committee points; for instance, I should like to know what is meant by the general nature of the charge being communicated to the prisoner. Sometimes the final charge is not ultimately formulated until some time after the prisoner has been in custody and before a Court of Summary Jurisdiction. When he is not taken before a Civil Court, but is taken before a court-martial at once, I assume that the time for formulating the charge will be the moment of his arrest or immediately after it; therefore he can claim the right at once. But in the case of a charge which brings the prisoner before the stipendiary magistrate or before a Court of Petty Sessions, apparently the time for appeal will have gone. That matter is deserving of the attention of the Attorney-General, and the Government should take care that charges shall be dealt with separately.
If, after the opening of the case and as it develops, other offences are found to have been committed, the two charges should be treated as being entirely separate and the man should have the opportunity of claiming a trial by jury in respect of the new charge, quite independent of the one he already knows and in respect of which he has lost his right to have a jury. Some of the observations already made have turned upon the possibility of a change of venue. The place of trial should either be the place where the act complained of is committed or the place of arrest, and a prisoner ought not, unless in exceptional circumstances, be liable to have the venue changed simply at the will of the Executive. At the present time applications for a change of venue have to be made to judges of the High Court, and if exceptional cases arise that course ought to be followed even under the proceedings under this Bill. Clause 1, Sub-section (4), deals with a case where the evidence fails to disclose a complete charge of felony, but does show a charge of treason. The Clause should be amended by inserting a provision that in that case a verdict of treason should be returned. I agree the times are exceptional, 326 but they are not so exceptional as to justify the taking away of the right, to a trial by jury where the prisoner desires to have a jury, and that time is not likely to come until matters have advanced considerably beyond the present stage.
§ Mr. C. E. PRICE
Serious complaint has been made to me by varoius Members of the Press of the inequality of treatment in respect of the publication of news.
I do not think that arises under this Bill. This is a Bill which proposes to give the right to trial by jury in certain cases. I do not see how that is relevant to the question why certain newspapers should or should not have been prosecuted in the past.
Mr. MacCALLUM SCOTT
On the point of Order. The Bill is to amend the Defence of the Realm Consolidation Act. That Act deals with regulations with regard to the dissemination of news. Any person who offends against those regulations will be tried by court-martial under the Defence of the Realm Act, and it is a matter of complaint among some Members of this House, of whom I am not one, that this Bill does not amend the Act in regard to the regulations relating to the dissemination of news.
It does not purport to do that. That matter is not within the four corners of the Bill, and it is a totally different thing. The object of this is limited; it is not intended to amend all the regulations made under the Defence of the Realm Act, and the matter raised by the hon. Member is outside it.
Mr. MacCALLUM SCOTT
Would it not be possible under the Title to move an Amendment extending the Bill?
§ Mr. PRICE
If you rule, Sir, that the matter is not in order, I shall not pursue it further. I only wished to make a reference to the same subject dealt with by the hon. Member for Bury (Sir G. Toulmin) 327 and the hon. Member for Mile End (Mr. Harry Lawson), who are both members of the Press, and were allowed to express their views. I shall not follow up the matter, although I was expressly asked to do so by a member of the Press who is not a Member of this House. The communication I have received contains the following paragraph, which perhaps the Attorney-General will think deserving of attention:I would also point out that Regulation 51 gives the military authorities power 'where a report or statement in contravention of Regulation 27 has appeared in any newspaper' to seize the 'type or plant used or capable of being used for the printing or production of such newspaper, and to destroy or otherwise dispose of it.'The observation made on that point by this newspaper is:—This is a most serious and menacing provision. I need hardly point out that an indiscreet local commander might ruin an important newspaper property by seizing and destroying the type, etc., notwithstanding that the infraction of Regulation 27 might have been inadvertent6.0 P.M.
It is to that point that I specially wish to call the attention of the Attorney-General, and I would ask him how far the Bill meets it? I am aware that the hon. Member for Mile End made some suggestion, but I did not catch the reply of the Attorney-General as to whether he would make this Amendment in the Bill. If that can be done, it will give great satisfaction to those who make this complaint. I should also like to suggest to the Attorney-General that the regulations under the Bill should be laid upon the Table of the House or printed before the Bill is passed. We shall then see how far these new regulations dovetail with the Act and how far they meet objections which had been raised to-day. Reference was also made to distrust in the Executive. You must always have a certain amount of confidence in your Executive at a time like this, and while some acts of injustice may be done, it is very necessary in some cases that justice should be very quickly dealt out.
§ Mr. WATSON RUTHERFORD
I wish to draw attention to the power which is reserved to the Executive to summarily remove a man's trial to any part of the United Kingdom. It seems to me that that is in effect, although it may not be from a sentimental point of view, a greater hardship for a prisoner than trying him before a court-martial. It appears to me that if a man is charged with an offence in the county of Northumberland, if the Executive has the absolute power to have 328 him tried wherever they think fit, whether it is the excuse of having it sooner or later, perhaps later in the particular case in point—if they have him tried in Devonshire, a grave injustice might be done. It has been pointed out that in all cases, as the law now stands, you may have to go to the High Court and get the authority of the High Court to change the venue for the trial of a prisoner, and it is a very serious matter indeed to take away the liberty of the subject, which we are supposed to be putting back in this Bill, in that drastic manner if the venue can be moved.
There is another point. We have had a discussion to-day as to who is to be entitled to the benefit of this Bill. The Bill itself says it must be a British subject. It is very properly pointed out that the British subject referred to in the Bill might for instance be a German who had got his naturalisation papers a few weeks ago. We do not want to give any special facilities to that gentleman. I take the view which has been expressed with very great force on the opposite side of the House, that British justice ought to be administered without partiality and without distinguishing a man's nationality at all. If a man is innocent or is to be proved guilty, even if he is our enemy, he is just as much entitled to British justice as if he had been a German a few weeks ago, and become naturalised. Some hon. Members have contended that the definition should be drawn even closer and others that it ought to include the subjects of neutral states for instance, but my contention is that it ought to include every person who puts his foot upon British soil. He is entitled to be tried by a jury. If this War had not taken place he would have that right. Of course, if he is a belligerent he is subject to martial law. Any of our young men who join this New Army in any capacity whatever are outside the benefit of this Bill. They are subject to martial law.
We do not seek in this Bill to give them or any other belligerent any rights whatever with regard to military or naval offences, except to be tried by the military or naval authorities. That, of course, applies to enemies as well, but when you come to the astonishing set of regulations which arise out of this principal Act and find that as regard to these new offences which have been created, which, of course, are mostly dealt with by magistrates and disposed of in a summary manner, any 329 person in England can be tried, and can be summarily convicted without any right of appeal whatever, we ought to be grateful to those Members of the House of Lords who have called our attention to it, and in passing this Amending Bill we might to take care that we do not create any fresh injustices, and do not impose upon a prisoner the loss of his undoubted right of venue, and that we open British justice to every civilian who sets his foot on British soil.
Mr. MacCALLUM SCOTT
I do not think any Member of the House, or any person outside on behalf of Members of the House, need stand in a white sheet because the Defence of the Realm Act was passed in its original form and gave the powers which were asked for by the Government at that time, and I do not understand how any Member of the House can now disclaim responsibility for the passing of that Act in the form in which it was passed. In the matter of all emergency legislation of this kind it must be acknowledged that Members of the Opposition have behaved with the greatest fairness and the greatest lack of prejudice, and with a very patriotic spirit. They took full responsibility for passing such measures as the Government deemed necessary, and for extending to the Government such powers as they thought necessary. Of course, the exercise of the powers is another matter. There may be, and no doubt at the proper time there will be, abundant criticism as to the manner in which the powers have in various respects been exercised. When that criticism comes no one will think it is unfair or is necessarily improper. When one listens to some of the criticism which has been passed, chiefly outside this House, with regard to granting to the Government the extensive powers which are contained in the original, one inclines to think that the War must be being conducted in some very remote quarter of the globe.
Had this War been taking place in South America, or in China, even on the largest possible scale, it is quite certain that this Bill would never have been introduced, and that even if it had been introduced it would not have been passed by this House. But these events, these dangers, are occurring within a few hours' journey of the House in which we sit. The War is not confined to the Continent. The warlike operations are actually being conducted on the island in which we live. Our shores have been bombarded, bombs have been 330 dropped inland, and warlike crafts attacking our food-ships have circumnavigated this island. The danger, possibly even greater than we can guess at, known only to the Government itself, was of an urgent and immediate kind, and when people talk of the suspension of our liberties by the passing of the original Act they seem to imagine that the choice was a choice between the civil liberties of the country and martial law. The choice was not between martial law and our civil liberties, but was of a very different and more dreadful kind. It was a choice between martial law and the absolute abrogation of law, such as we see existing in Belgium to-day. It was because out of the dangers which surrounded us at the opening of this War there was a possibility that events might occur which might result in such a state of matters as we see in Belgium that martial law was introduced to the extent to which it was introduced by this Act.
It must be remembered also that all the guarantees of civil liberties were not suspended by the Defence of the Realm Act. Part of the machinery of civil liberty, and a very important part, was abrogated or suspended, but there are some of the greatest safeguards still existing and still preserved. After all, the Government which exercises the power granted by the Defence of the Realm Act, the Government which exercises those powers, is not an autocratic or oligarchic Government. It is still a Government responsible to this House, and unable to carry on without the continued support of this House. In the second place, those courts-martial, those military authorities, which exercise certain powers under the Defence of the Realm Act are not absolute and autocratic authorities. Our military authorities are under civil control. The authority which Lord Kitchener, the Secretary of State, exercises over the Army is not an authority derived from his profession as a soldier. It is an authority derived from his position as a member of the Government responsible to the House. It is a civil authority just as much as the authority which is exercised over the Navy. The Government itself has assured us that the urgency of the situation is no longer as great as it originally was. I am not sure that I should have ventured to make any such statement. As far as an ordinary lay member can see the dangers which surround us are as great as they have been, but the Government has access to information to which we have not access. It 331 knows what guarantees and assurances the Navy can give us, and if it can assure us that the powers originally conferred in this Act can be safely limited and diminished the House I am sure, will pass the measure proposed, limiting those powers, with the same willingness with which it originally passed the Defence of the Realm Act.
While we accept wholeheartedly the principle of this Bill—the principle of giving the Government powers so limited—I think we can properly and justifiably make some criticisms of the machinery whereby the principle is carried out. A number of criticisms have been made from both sides of the House, and some of them seem to me to have considerable cogency. I hope they will be taken into consideration by the Minister responsible, and that when we come to the Committee stage it will be possible for some modifications of the terms of the Bill to be granted. There were two criticisms which seem to me specially cogent. The first was with regard to the concession contained in the Bill giving liberty to be tried by a Civil Court. That was confined only to British subjects, but it was denied to alien enemies, neutrals, and allies. I could not understand why, in accordance with the principle of the Bill, that should be done—why that limitation was introduced. Presumably, any person arrested under this Act will be guilty of an offence. Is it suggested then that an offence of this kind by a British subject is less dangerous and less heinous than if committed by an alien enemy, or by a neutral, or by an ally? I should have thought that an offence of this kind by a British subject was much more heinous and blameworthy. There would be double guilt—first, the guilt of a breach of these regulations, and the further guilt of disloyalty and treachery to the country to which one owes allegiance, and, if any person ought to be visited with the severest penalty, it is the British subject who is guilty of such treachery. To introduce this limitation seems almost like saying that a man who is guilty of burglary should be tried by court-martial, while a man guilty of parricide should be tried by a Civil Court and a jury. I understand the limitation with regard to alien enemies. I do think it would be more difficult to secure a fair trial by jury for an alien enemy, but I do not think the same difficulty would exist with regard to aliens who are either allies or neutrals.
332 The second criticism which I thought had much weight was in regard to that part of the Bill which requires that, in order to have the right to be tried by a Civil Court, the accused person must make his claim within four days. I do not understand why that limitation should be introduced at all. If there is no danger at all in having the trial by Civil Court, why have any limitation at all? Why not lay down in every case that trials shall be by Civil Courts? Why give any option to the accused man to adopt the alternative and to be able to exercise the option in four days? In this matter I think the burden of choosing as to whether one shall be tried by court-martial or Civil Court should not be placed upon the individual who is accused, but upon the Government. You could give in the Bill the full right to all accused persons to be tried by the Civil Courts, subject to the right of the Government if any dangerous event occurs, or any eminent danger arises to deal with the matter by Proclamation. I call attention particularly to these two points in the Bill because it seems to me that, in the first place, the limitation to British subjects, and secondly, the obligation to claim the right of trial by a Civil Court within four days are contrary to the main principle of the Bill. The main principle of the Bill is that there is no immediate reason why these offences should be tried by court-martial, and why they should not be tried by the Civil Courts. Some suggestions have been made which I will not discuss at the present moment, but they will probably be discussed on the Committee stage. I do not think they have the same force or cogency as the two I have indicated.
§ Question put, and agreed to.
§ Bill read a second time, and committed to Committee of the Whole House for tomorrow (Thursday).