CLAUSE 1.—(Power to provide for trial of offences by special courts in certain areas.)

§ The Secretary of State for the Home Department (Sir John Anderson)

I beg to move, in page 1, line 19, at the beginning to insert, "It is hereby declared that."

This Amendment, together with five other Amendments which, with permission, I should like to take together, is designed to give effect to a promise that I made during the Second Reading of this Bill that words would be inserted to make clear what I said was the intention of the Government, that there should be set up, 703 if necessary, courts of a special character but not courts of a military character. There is in the principal Act no express prohibition of the establishment of courts of any special character other than courts-martial, but, as I explained on the Second Reading, it seemed to the Government, notwithstanding that what they have in mind is to provide in certain circumstances of emergency for special courts of a civil character, that it was right to bring the matter before the House of Commons before taking the steps framed in the Regulations. If words are to be inserted in the Bill in accordance with my promise, limiting the powers given by the Bill for the establishment of courts other than courts-martial, it is quite clear that the Bill must be recast in a declaratory form, because, as I have said, a provision by this Bill for the setting up of special courts of a civilian character does not on the surface involve any infringement whatsoever of the provisions of the principal Act. Therefore, we have to make the main provision in terms declaratory. All the provisions in the various Amendments that I have indicated are consequential upon that. I think that, with that explanation, I may leave the matter to the Committee.

§ Mr. A. Bevan (Ebbw Vale)

I am sorry to have to intervene, but what exactly is the purport of this? Is it to make this Bill declaratory, instead of an amendment of the existing law? If it is declaratory, there is obviously a limit upon the Amendments which can be moved. If, on the other hand, it is not declaratory, but merely an amendment of the existing law, the scope of the Amendments that can be moved is much greater. I apologise to the right hon. Gentleman, but it is rather important. One cannot understand why the right hon. Gentleman introduced the Bill in its original form. On that occasion I pointed out that if the existing law was as the right hon. Gentleman declared it to be, there was no need to bring in the Bill at all. He now finds it necessary to bring in an Amendment which makes it clear, as far as we can see, that the existing law gives him all the powers that he is asking under the Bill. Therefore, he wants to make the Bill declaratory of the existing law, rather than an amendment to it.

704 I just want the one assurance, that the nature of the Amendment does not in any way limit the Amendments that we can move.

§ Mr. Pickthorn (Cambridge University)

Are we now to discuss all the Amendments in the name of my right hon. Friend?

§ The Chairman

No, that is not the intention; only some of them. The right hon. Gentleman, however, gave a sufficient explanation of all these particular other Amendments, so that, at any rate as far as he is concerned, he probably does not propose to do more than to move these further Amendments formally.

§ Sir J. Anderson

May I refer to this again? The first Amendment that I am referring to is the first on the Paper, in page 1, line 19, at the beginning, to insert "It is hereby declared that." The others are: In page 2, line 2, to leave out from "engaged," to "include," in line 3; in line 10, after "such," to insert "special"; in line 10, after "courts," to insert "not being courts martial"; in line 16, after "courts," to insert "not being courts martial"; in line 23, leave out from the first "and," to "are," in line 25. They all hang together, and they are necessary in order to give effect to a promise which I gave on the Second Reading. In answer to the hon. Member for Ebbw Vale (Mr. Bevan), all I can say is that it is no design of the Government that, by the adoption of this form, which is forced upon us by the exigencies of draftsmanship, the scope of possible Amendments shall be in any way curtailed. I do not know whether the Chair can give any guidance on that.

§ Mr. Lees-Smith (Keighley)

Can you give any guidance, Sir Dennis, as to whether your decision on subsequent Amendments will be affected by this?

§ The Chairman

I do not see any reason whatever why that should be so.

§ Mr. Bevan

Am I to understand that the other Amendments on the Order Paper will be called?

§ The Chairman

These which I had intended to call.

§ Mr. Glenvil Hall (Colne Valley)

Is that one reason why we are taking the Preamble last?

§ The Chairman

No. We are taking the Preamble last because that is the proper procedure on any Bill which has a Preamble.

§ Mr. Hall

I understood that, but this was the point that I wanted to make. There are certain Amendments to the Preamble, in the name of the Home Secretary. It will surely be that Preamble which will limit any Amendments which we might move. Up to then we shall be all right.

§ The Chairman

On the contrary, the Preamble is taken last because the form of the Preamble will depend on the form of the Bill.

§ Sir Herbert Williams (Croydon, South)

I am not clear what we are doing. I gather than the Home Secretary has moved the Amendment, to insert, in line 19, "It is hereby declared that." This is a declaration that we are passing an unnecessary Bill. You do not declare that this is the law unless you have doubts. I take it that the right hon. Gentleman has doubts as to whether he can do all this business under previous Acts which we have passed. Personally, I thought that on 24th August we passed all the emergency legislation which was necessary; but we go on legislating, and ultimately we produce this document, under which, if I understand it correctly, all sorts of people can be bumped off without trial. I put it in crude terms, because I think in crude terms with regard to this Bill. The Home Secretary really ought to tell us why his first Amendment is to declare that all that is in this Bill can already be done. [Interruption.] I think so, because it is really almost an impertinence to ask Parliament to pass a Bill to declare that we can set up all sorts of persons in certain circumstances to shoot other people because the powers are already possessed. I do not recollect any other Bill of this character. It is true that we have only one Hitler in the world, but that is no reason why we should pass this particular Amendment.

§ Mr. Bevan

Can we have a statement, because this is really important? The hon. Member for South Croydon (Sir H. Williams) is quite correct. On a previous 706 occasion I was treated with some contumely by the right hon. Gentleman because I suggested that the first words of the Bill were plain nonsense if what he said was correct. When he moved the Second Reading he said that it was not necessary for him to bring the Bill to the House, as he had all the powers necessary to do what he wanted done under the Bill, but that as he proposed to do something which was an important departure from existing practice, he thought it necessary to give the House an opportunity of discussing the matter. I think that that lies within his recollection and the recollection of the Committee. That made plain nonsense of the Title of the Bill, which plainly said that he had not the power which he said he had. Having realised his mistake on that occasion, he now brings in a form of words which makes the Bill declaratory of the existing law.

I am sorry if I am being unduly suspicious. If I am, it is the right hon. Gentleman's own behaviour which is responsible. He now makes this declaration, and, as you have already said, Sir Dennis, we shall come to the Amendment of the Title of the Bill, which is, to "remove doubts as to the extent of." To remove doubts as to the extent of what? Of the existing powers of the right hon. Gentleman before this Bill is passed. That is the purpose of the Amendment of the Title, so that we are engaged, as far as I can gather, in an attempt to place upon the Statute Book an interpretation of the powers which the right hon. Gentleman says he has at this moment. That is surely a most clumsy and maladroit way of bringing it before the House of Commons. It is an attempt to sneak the consent of the House of Commons to proposals, which, had they been introduced by regulations, might have brought a storm down upon the right hon. Gentleman's head. We are very doubtful about this. You have informed us, Sir Dennis, and we are very grateful for it, that the Amendment now moved by the right hon. Gentleman will not in any way limit the Amendments which we want to move in the subsequent stages of the Bill, and that all the Amendments that we now want to move could have been moved if the right hon. Gentleman had not moved his Amendment. We are very grateful for this provision, but we would like to put on record 707 our view that the right hon. Gentleman has befuddled and bewildered the House of Commons by a procedure which is entirely unnecessary instead of acting in a straightforward fashion.

§ Captain W. T. Shaw (Forfar)

Would you indicate, Sir Dennis, what Amendments you are really going to call, in view of the Amendment being proposed now?

§ The Chairman

No, I cannot do so altogether, because it must depend upon the course of the Debate. Any hon. Member interested in any particular Amendment should raise any question about his Amendment when we reach it.

§ Commander Sir Archibald Southby (Epsom)

I am in some personal difficulty. I do not want to anticipate a Ruling by you, Sir Dennis, but if we pass this Amendment and this Bill is made declaratory, will it influence your decision with regard to the Amendments you would call? In my particular case, if making the Bill declaratory is to rule out any Amendments that I have on the Order Paper, I should naturally vote against making the Bill declaratory, but if it is not going to make any difference whether you call my Amendments or not, my action may be quite different. In my Amendments I seek to establish the principle that this House should keep control of the courts. You have not indicated, Sir Dennis, whether you are going to call these Amendments or not, but it is vitally important to me.

§ The Chairman

The hon. and gallant Baronet has not yet given me the chance.

§ Sir A. Southby

That is why I rose to ask you, with great respect, whether, in view of the difficulty in which I find myself, through the Bill being declaratory, it would be in order for you to indicate whether you intend to call Amendments or not.

§ The Chairman

I hope that it will satisfy the hon. and gallant Gentleman if I tell him that, if the Amendment is passed, it will make no difference whatever to what course I may adopt with regard to the Amendments.

§ Mr. Ernest Evans (University of Wales)

I think that the Amendment is 708 rather unnecessary. Why is it that the right hon. Gentleman felt it necessary to introduce this Amendment? Either he has or he has not the powers. If he has the powers, this Bill is not necessary, and if he has not the powers, why did not he ask for them in the ordinary way by saying, "I want a Bill which will give me these powers"? Why introduce this particular and unusual form of saying, "I declare these things are necessary"?

§ Mr. Shinwell (Seaham)

May I put a point which might very properly be dealt with by the Attorney-General? It will be a question of draftsmanship, and there may be a legal point involved. If this Bill is rendered declaratory as the result of the acceptance of the first Amendment of the right hon. Gentleman, does it not follow that all the Amendments on the Paper will be rendered null and void because the right hon. Gentleman will then have power, having regard to the declaratory nature of the Bill, if amended, to proceed by regulation on all the points that are raised in the Amendments on the Paper? That is what appears to me to be the position. If the right hon. and learned Gentleman can clear up the point, we shall be satisfied, but there seems to be a little dubiety on the point.

§ Mr. Glenvil Hall

Would the right hon. Gentleman the Home Secretary also tell us when he realised that the position had altered? When this Bill was introduced obviously he had not these powers, and now, several days later, it appears quite plainly that he not only has them but he wants us to declare that he has them. When did enlightenment come to the right hon. Gentleman?

§ The Attorney-General (Sir Donald Somervell)

That point is a simple one to answer. The Bill as originally introduced removed altogether the bar in the original Act on the trial of civilians by courts-martial or any special court which might be regarded as analog[...] to a court-martial. When my right hon. Friend had explained that his intention was to set up what might reasonably be described as civil courts, he was asked by the right hon. Gentleman opposite, and the hon. Gentleman who was then the Member for 709 West Middlesbrough (Mr. K. Griffith) whether, if that was his present intention, he would be content to limit the power which the Bill, as introduced, conferred on him to the extent necessary for the carrying out of his present intention as he stated it to the House. My right hon. Friend said he was. That brought about this state of affairs; that these courts clearly were not courts-martial. It might have been suggested, whether it could have been held as a matter of law or not, that the prohibition in the original Act on setting up courts-martial to try civilians indicated a general intention not to set up such courts, which, though not courts-martial under the Army Act, were at any rate special courts to be set up, having regard to the military sitiuation. It was in that state of affairs that my right hon. Friend said that, although his intention was limited in the ways he had stated, he would not in any event have thought it right not to come to this House with a Bill in order that the matter might be discussed and Amendments proposing limitations considered and accepted or rejected.

The result of that undertaking given by my right hon. Friend made it quite plain that the Bill, as amended, did not add new power, at any rate, to the letter of the original Act. It introduced something that necessitated putting the Bill into declaratory form, because it would have been unintelligible from the point of view of draftsmanship not to have this Bill in declaratory form when it was doing something that was conferred by the original Bill but which it was thought right should be made the subject matter of an amending Bill, with all the possibility of Parliamentary discussion and Amendment which a new Bill involves. Therefore, in the Bill amended by my right hon. Friend in accordance with his undertaking, it is certainly necessary that it should be declaratory in form. The question of Amendments is a matter for the Chair, but I thought the Committee had had an assurance from the Chair that the passage of this Amendment would in no way limit the Amendments which it was proposed to call for discussion.

§ Mr. Bevan

We should be very much reassured if the Chair could find it possible to indicate the Amendments which it is proposed to call. In ordinary 710 circumstances we get assurances through the ordinary channels, but they have now either been closed or temporarily suspended, and we have not those former facilities. If this Bill is declaratory, then it is declaratory of the existing law, and if an amendment of this Bill is construed to be an amendment of the existing law, then it would be presumed to be out of order.

§ The Chairman

I understand the hon. Gentleman has put a question to me, and I presume he wants it to be answered by me, and not to give the answer himself. I will answer the question so far as I can, but I thought I had already given sufficient answer by saying that if this Amendment were made, it would not alter my decision in any way with regard to any Amendments on the Order Paper or any of those handed in in manuscript. I do not want to go further, because the hon. Member will realise that in a case of this kind the Chair may have to depend upon what happens to certain Amendments as to whether others should be called. I can only give him the definite assurance that if this Amendment is carried, it will make no difference whatever to the selection or otherwise of other Amendments on the Order Paper. If I may put it a little more plainly, I do not consider that the insertion of these words would rule out of order any Amendment which would otherwise have been in order.

§ Sir J. Anderson

I beg to move, in page 2, line 2, to leave out from "engaged," to. "include," in line 3.

§ Mr. Naylor (Southwark, South-East)

As the Amendment is now drafted, I think there must be some mistake. The word "engaged" should be "shall."

§ The Chairman

The hon. Member is mistaken. Where it says "leave out from 'engaged'," it means all the words after that word.

§ Mr. Naylor

The word "shall" is necessary for the sense of the Clause.

§ The Chairman

I do not read it so. I think it is perfect sense in the form in which it is on the Order Paper. The effect of the Amendment, if carried, would make the passage read in this form: 711 … and the efficient prosecution of any war in which His Majesty may be engaged, include power to make provision," and so forth.

§ Sir J. Anderson

This Amendment is consequential.

§ Sir J. Anderson

I beg to move, in page 2, line 4, after "where," to insert: by reason of recent or immediately apprehended enemy action. I gave two assurances during the Second Reading, one that I would propose Amendments on the lines of the Amendment we have just passed, together with certain other consequential Amendments, and the other that I would consider carefully whether words could be inserted to make more plain the precise nature of the contingency we have in view as to the possibility necessitating the establishment of special courts. The Amendment, together with the further Amendment in page 2, line 5, to leave out from "require" to "persons" in line 6, and to insert: that criminal justice should be administered more speedily than would be practicable by the ordinary courts, goes as far as we have found it possible to go, after full consideration, towards meeting the second point. The object of these two Amendments is to make it quite clear that we do not wish to have absolutely unfettered discretion to introduce the special courts at any time and in any circumstances. We are quite willing that the power to set up these special courts should be limited in the manner implied by the words which it is proposed to insert by way of Amendment. That is to say, it is only by reason of recent or immediately apprehended enemy action that we seek power to introduce these courts and then only where the military situation is such as to require that criminal justice should be adjusted more speedily than would be practicable by ordinary courts. I trust that the right hon. Gentleman and hon. Gentleman who asked for the assurance to which I have referred, during the Second Reading, may feel that we have at any rate gone some way, and in our view as far as was practicable—it is a matter of drafting—towards giving the assurance that was desired.

§ Mr. Spens (Ashford)

This is the first occasion on which I have intervened on this Bill, and I think I am the only lawyer who has not spoken on it. I am extremely sorry to have to criticise the Amendment in any way, but these are severely limiting words: by reason of recent or immediately apprehended enemy action. Part of my division is now a defence area, and it is quite true that it was turned into a defence area because it might be said that at the present moment there is "immediately apprehended enemy action." Anyone who has to deal with this Bill has to anticipate everything happening except what is most likely to happen, and although in one sense the South-East of England may be a part of the country to which the enemy may come very soon, at the same time, judging him always as likely to do what is least expected, it may be that we shall remain a defence area for a very long time and may not suffer anything more than we are suffering at present from enemy action. What is happening in the area at present arises as much from action taken by ourselves and our own Government and Government Departments as from enemy action. We have a large portion of the population immobilised there. They have little or no means of transport, the principal businesses all along the coast have been mined, there is very considerable suffering, and one wonders whether, with conditions continuing like that for a long time, it will be possible to continue the present system of administration of justice. I am inclined to think that there will have to he special arrangements made which are not available at the present moment under our present law, although they may be available under present regulations. I would ask my right hon. Friend to consider whether it might not be possible slightly to enlarge the words: by reason of recent or immediately apprehended enemy action. so as to include action taken in this country on account of recent or immediate apprehended enemy action. [Interruption.] Hon. Gentlemen are frightened of something of that sort being done.

§ Mr. Shinwell

It is you who are frightened.

§ Mr. Spens

I am not frightened in any way, but I am concerned to see that in every large area it will be possible to carry on the ordinary administration of justice. It is difficult for hon. Members to realise the change that has come over these areas, a change very vital to the population. I do not want anything more than that my right hon. Friend and the Attorney-General should satisfy themselves before the Bill becomes law that they have not limited themselves too much, in the event of these areas remaining in their present condition, and perhaps getting into more difficult conditions for people to travel about and justices to hold their courts, in order to deal with a situation which may get more difficult as time goes on if we are not made the object of an immediate attack. At present, with this Amendment, the Bill may, in fact, turn out to be too limited to deal with the difficult situation around the coast in three, four or six months' time.

§ Mr. Sorensen (Leyton, West)

Would the hon. and learned Gentleman mind being a little more precise as to the conditions that he envisages in which these powers should be operative?

§ Mr. Spens

I do not think it very desirable to go too much into details and to specify conditions that may arise. I want to be quite certain that we may not want to have some elasticity in dealing with local courts possibly in the months to come.

§ Mr. Silverman (Nelson and Colne)

I apprehend that the purpose of the Amendment is to introduce some limitation upon the right of the Executive to set up these special courts by regulation, and I understand that the limitation which is contemplated by the Amendment is contained in these words. I want to know who is to be the judge of the necessity. I want to know whether there is to be any control of any kind upon the power of the Executive to declare that the conditions contemplated by the amended Bill are such as to require the institution of these special courts. Are the ordinary courts of the land to have power at some stage, or in some conditions, to examine whether the right hon. Gentleman has acted correctly or incorrectly in declaring that in any particular area at any particular time the situation is such as to enable him 714 under the Bill to set up the special courts which are contemplated? Unless there is some time at which the authority of the Executive can be controlled or checked by some impartial judicial authority, it seems to me that all this paraphernalia of definition is absolutely meaningless. If the right hon. Gentleman is himself to be the judge of whether the conditions are such as to necessitate the establishment of these special courts, it does not seem to matter a great deal what are the words under which he is authorised to act. I should like some assurance that any regulation that he may make setting up these special courts shall at some time be subject to review in the courts—that it shall not rest entirely on his declaration that the conditions contemplated by the Bill are satisfied, but that there should be some judicial determination as to whether these special courts have been properly set up or not.

§ Mr. Pickthorn

I rise to put as shortly as I can a point which is so small that perhaps it ought not to be put, but it worries me a little. I do not feel clear that these words really add anything, but I understand that they were drafted to meet the desires and fears of some hon. Gentlemen, and I should not wish to stand in the way of their being inserted. I want to inquire whether enemy action may not be of three kinds. I quite understand there is never such a thing as the present, but only the past and the future. Presumably enemy action can be recent, or it can now be continuing, or it can be immediately apprehended in the future. I am not quite clear whether in logic, and perhaps even in law, something ought not to be done with these words, or some further explanation given on that point.

§ Sir A. Southby

I disagree with my hon. and learned Friend the Member for Ashford (Mr. Spens). Heaven forbid that we should give any further powers under this Bill. When my right hon. Friend the Home Secretary said that these words would be a limitation, it struck me that the limitation would be more apparent than real, because there is no part of the country where one man, if the matter is to be decided by one man, might not say that he immediately apprehended enemy action; and there would be no means, as far as I can see, for the House ever 715 to say whether they agreed with him in his apprehension or whether they did not. We are legislating for the future. I do not think anybody in the Committee would have any idea that my right hon. Friend would ever do anything that did not carry out the law honestly, justly, and fairly. We have to think about the future, and to realise what has happened in other countries.

It seems to me that the words of the Amendment give enormous power. One man—presumably the Home Secretary—is to decide whether he apprehends enemy action as likely to be immediate, and then he is also to decide whether he thinks criminal justice could not be administered under the conditions then existing. He is to decide that, and nobody is to be able to say to him, "Are you quite sure you are right about that?" By one stroke of the pen one man can turn every area of the country into a district in which the existing judicial system is swept away on the grounds that possibly enemy action may take place. To-night, enemy action might be immediately apprehended in the City of London, and it would be possible for the Home Secretary to take this action there. It seems to me that if these words are to be accepted—and I have no desire to stand in the way of their being accepted—there must be at the same time an undertaking that the House shall have an opportunity of saying whether they think the Home Secretary has acted rightly or not. That is the essence of the objection that I have to the Bill and the powers which it contains. If there is to be an opportunity for the House to maintain some control over the decision as to whether it is necessary to put these powers into force, and subsequently to have some control over the way in which the courts function, the words can be inserted in the Bill, and it will not matter very much.

§ Mr. Bevan

In the Second Reading Debate on this Bill, there was obviously a desire that the executive should be entrusted with powers to modify the normal processes of justice in certain emergencies. What the House was suspicious about was the nature of the modification and the manner in which it was proposed 716 to be carried out by the Home Secretary. As far as I could gather, no hon. Member suggested that it would be possible to carry out the normal processes of justice if there were an invasion in certain areas, and some hon. Members even suggested that if an invasion occurred in any part of the country, the w hole of the country might be affected by it. What the House was highly suspicious about was the sort of situation in which the modification would be brought about. The language of the Bill was far too wide, because it might be said by some Home Secretary that the existing situation justifies a modification of the existing processes of justice. I consider that the words in the Amendment are limiting words, and that they are less wide than the words originally in the Bill. In the original Bill there was a reference to the "military situation." Therefore, in the first place, the Amendment ought to he accepted because it limits the power of the executive to decide whether such a situation has arisen.

Who is to decide whether such a situation has arisen? I do not want to quarrel with my hon. Friend the Member for Nelson and Colne (Mr. Silverman), but I am bound to say that I do not consider that anybody except the executive can decide such a matter. The executive is limiting its decision by the wording of this Amendment. It will be no good the Government coming to the House and saying, "We consider that the military situation justifies us in issuing an order under this Bill," because under the Amendment enemy action has to be immediately apprehended. The wording of the Amendment means that there must be local action about to be committed by the enemy, or apprehended to be committed by the enemy. I think the Amendment very considerably limits the power of the executive. Then, the action must be taken by the executive. It cannot be taken by the courts. It cannot be taken by the House, because the House might not be sitting, and the House would not have the information necessary. When the Bill was presented, I was filly conscious of the necessity for a modification of the existing procedure in an emergency. What I wanted was a chance to decide what the modification was to be. I suggest that the executive should have the power to determine, under these limiting 717 words, when the emergency has arisen, and of course, the House will always be, and must be, the judge of whether the Home Secretary has exercised the power properly. The House will be able to ask, "Why did you issue the order in district A, B or C? What was your justification for doing so?"

§ Mr. Silverman

We shall be told that in the public interest we cannot be told.

§ Mr. Bevan

Neither my hon. Friend nor I wish to obstruct the right hon. Gentleman in getting necessary powers. I suggest to my hon. Friend that surely it will lie within the functions of the House at the time to force the Home Secretary to justify the action he has taken. What we want to do is to limit the scope of his action, and I suggest that has been limited by the Amendment. I believe the Amendment will be a good one, and I shall support it.

§ Colonel Gretton (Burton)

I agree that this Amendment is a limiting one. What I am not quite sure about is whether there is any reason for inserting the word "recent" in the Amendment. Does it mean that the enemy action must have taken place recently, and must be expected to happen again, before the setting up of these special courts can be justified? Is that the proper interpretation?

§ Sir Richard Acland (Barnstaple)

I have on the Paper an Amendment dealing with the same point as that dealt with in the Home Secretary's Amendment. You have not selected my Amendment, Sir Dennis, on the grounds that it covers the same point as that covered by the Home Secretary's Amendment, and I believe that if I wanted to argue my reason for preferring my Amendment, I might be allowed to do so; but I do not propose to do that because I should be in the difficulty that, if I were to persuade the Committee that my Amendment was preferable, the Committee would have gone beyond the point at which it could make the Amendment. With your permission, Sir Dennis, I can make the points which I intended to make on my Amendment if you will allow me to move an Amendment to the Home Secretary's Amendment of which I have given you notice, namely, to leave out of the Home Secretary's Amendment the words "or immediately apprehended."

718 In support of that Amendment I would ask the Home Secretary to consider one or two points. I would ask him to consider how the whole of this Bill appears to many Members in all parts of the Committee, and, in particular, to Members on this side of the House. We are all, I am sure, anxious to do everything we can to safeguard the country from all possible forms of danger. One obvious danger is that the Government may not have enough powers to deal with a certain situation which may arise, but another form of danger, which this Committee must guard against, is that the Government may have too much power, and powers which in these days an Executive ought not to have. I submit that this is one of the cases where the Government is asking for just a little bit too much power. The right hon. Gentleman may reply by asking whether it is possible to give the Government too much power and whether we do not completely trust them. I would ask the right hon. Gentleman to remember that this is the third occasion on which this kind of thing has happened. First we had the I.R.A. Emergency Bill. Many hon. Members thought it went too far, giving the Government too many powers, and, as a result of debate, alterations were made which to a certain extent satisfied us. Then there were the emergency powers at the beginning of the war, and again it was generally agreed that the Government were being given far greater powers than they ought to have, and by agreement those powers were limited. Here, for the third time, the Government seek to secure powers which many Members in this Committee are of the opinion are more than any Government should have.

§ The Chairman

The hon. Member seems to be making a Second Reading speech on the Bill. When I called him I understood that he wished to move an Amendment, but he has not stated what that Amendment is, or explained it in any degree, or indeed confined any of his remarks to that which is now before the Committee.

§ Sir R. Acland

I beg to move, as an Amendment to the proposed Amendment, to leave out the words "or immediately apprehended."

I was trying to explain why these, words gave to the Government wider powers than they should have. If hon. 719 Members will look at the statements which have been made on this Bill, describing the situation it was designed to meet, it will be clear that the Amendment to leave out these words would give to the Government all the powers they need. I would draw attention to what the Attorney-General said on that occasion: What, then, is the problem with which the Bill and the regulations made under it seek to deal? As I have said, it does not arise in the immediate battle-area. When the guns are going oil, when fighting is actually going on, there is no opportunity to apprehend people and deal with them by due process of law. It is the problem which may arise—and may not—not necessarily over the whole country but in certain areas, in the aftermath of an invasion or attempted invasion, when the enemy have been driven back but when there are small parties of men about"— [OFFICIAL REPORT, 16th July, 1940; col. 138, Vol. 363.] If that be the Government's case, what objection can there be to having this Amendment worded as it would be if these words were left out? If the Home Secretary is going to refuse my Amendment, as I gather he is, I would ask him to give one concrete example of the type of situation in which he might desire to use these powers and would not be able to do so if the words "or immediately apprehended" were left out. If he can give an example, I shall be prepared to withdraw my Amendment to the Amendment. If he cannot, I hope he will withdraw his opposition to my proposal, because I submit that if these words are left in they give to the Government powers which the House of Commons ought not to give to any Government, namely, to say "We apprehend that something will happen somewhere or possibly everywhere"—because there is nothing in the Bill to prevent them doing it everywhere at once—"which makes it necessary to wipe out our present system of justice."

Question proposed, "That those words stand part of the proposed Amendment."

§ The Chairman

The Committee will perhaps realise that as I have put the Amendment to the Amendment, that is the only thing we can discuss at the moment.

§ Mr. Silverman

Does the Amendment to the Amendment require seconding?

§ The Chairman

No.

§ Sir J. Anderson

The hen. Baronet was safe in one particular, and that was when he expressed the expectation that I should not be disposed to accept the Amendment to the Amendment. I do not see why the limiting words which I have already proposed to be inserted should be further limited in the manner proposed by the hon. Baronet. It is true that the state of affairs which we have mainly in mind is a state of affairs which might arise following an invasion or attempted invasion or enemy attack. I think, however, that the Executive ought to be armed with powers to deal with a case where, in a battle that might be ebbing and flowing, it is thought desirable that an area contiguous to one in which an attack had been suffered should, as it were, clear the decks for action. For that reason I think we ought to be content with the limiting words, that are proposed in my Amendment.

§ Mr. Lees-Smith (Keighley)

Two appeals have been made to the Home Secretary, but I hope that he will not accept either of them. The hon. and learned Member for Ashford (Mr. Spens) wishes the limiting words which have been inserted to be taken out, so that in his constituency there should be, even without these safeguards, power to do away with the ordinary courts of law even now. That, of course, would be entirely contrary to the undertaking which the Home Secretary gave to the House on Second Reading. The hon. Baronet the Member for Barnstaple (Sir R. Acland) thought that the words "recent enemy action" were not necessary, but, if there has been fighting, I imagine that even though the enemy may have withdrawn from a particular area conditions there may be so disturbed that these courts, if they have been established, should be allowed to continue until the situation has been cleared up. After the undertaking which he gave on Second Reading the Home Secretary had a discussion with certain representative Members. We racked our brains to find a form of words which would suit the undertaking he gave. We came to the 721 general conclusion that we wanted to put into words the idea that the conditions were such that the ordinary courts could not, somehow, be effective; and I am bound to say that we did not hit upon any better form of words to express what is wanted. I feel that the Home Secretary has made a very fair attempt to meet the undertaking which was given.

§ Sir J. Anderson

I will deal with one or two of the points which have been raised in the discussion upon this Amendment. As regards what fell from my hon. and learned Friend the Member for Ashford (Mr. Spens), has he observed that, apart altogether from this Bill, Regulations have recently been made under the principal Act which are designed to impart a greater measure of flexibility to the machinery of the ordinary courts? In the view of the Government, it is by way of such Regulations that any difficult situation that may arise, otherwise than in the manner contemplated by this Bill, can best be dealt with. If the amendments in procedure which have been made by those Regulations are not found to go far enough, there will be nothing to prevent further amendments of a similar character being made, and I think we may be satisfied that all contingencies that are likely to arise, short of the profound disturbances caused by enemy action of the kind that is in contemplation in connection with this Bill, can be met in the way I have indicated. My right hon. and gallant Friend the Member for Burton (Colonel Gretton) referred to the use of the word "recent." As the right hon. Gentleman the Member for Keighley (Mr. Lees-Smith) has indicated, there is virtue in that word. What we have in mind is that the establishment of these special courts should follow as soon as possible after the disturbances caused by enemy action, and therefore we wish to retain the word "recent" to mark that point.

§ Major Milner (Leeds, South-East)

There is more virtue in the word "apprehended."

§ Sir J. Anderson

That is the other contingency that we have in mind. We do not contemplate that the special courts should be introduced for the first time long after enemy action has been taken in any area.

§ Sir H. Williams

I do not know whether "enemy action" means invasion or the dropping of bombs. I do not want to mention anything that it would be improper to mention, but I was in certain places where bombs had been dropped. That was recent enemy action. As a result of that, could all this machinery have been put into operation?

§ Sir J. Anderson

We shall be in trouble if we raise points which were dealt with upon the Second Reading. I thought I had made it clear on Second Reading that we meant, not only invasion but exceptionally heavy aerial bombardment resulting in turmoil and confusion.

§ Mr. Silverman

It does not say that.

§ Sir J. Anderson

It says "recent enemy action."

§ Mr. Silverman

It does not refer in any way to the degree of such action.

§ Sir J. Anderson

I was dealing only with the point that heavy aerial bombardment was covered. The only other point is that which was made by my hon. Friend the Member for Cambridge University (Mr. Pickthorn). The words that we propose to introduce are, undoubtedly, of a limiting character, as the hon. Member for Ebbw Vale (Mr. A. Bevan) clearly pointed out.

§ Mr. Glenvil Hall

Can the right hon. Gentleman deal with the point which was raised by the hon. and gallant Member for Epsom (Commander Sir A. Southby)? The point was that, in a sense, whatever form of words you used, you could not really limit, as is proposed by the right hon. Gentleman, the powers of the Home Secretary under a Regulation. As soon as war begins, enemy action may be apprehended. When enemy action is going on, a state of emergency exists. The right hon. Gentleman may not always be at the Home Office, and we should be much safer if we could have the Regulations brought to this House, before they were ratified and put into operation by the Home Secretary.

§ Mr. Silverman

Suppose the Committee accepted the right hon. Gentleman's Amendment: what limitation would there be on the right of the Executive to declare, in any area, that the circumstances contemplated by the Bill had arisen?

§ Sir J. Anderson

The point which was raised by the hon. Member for Colne Valley (Mr. Glenvil Hall) was really answered by the hon. Member for Nelson and Colne (Mr. Silverman). I did not deal with that case, as I thought it was best disposed of by the hon. Member for Ebbw Vale, but the position is surely this: These powers, if they are granted, must of necessity be entrusted to the Executive. [HON. MEMBERS: "Why?"] Because they are essentially powers of an executive nature. An hon. Member asked, who would actually exercise them? From my point of view I do not know that it is very material whether they are exercised by the Secretary of State or by the Minister of Home Security, but it will be one or the other. As regards control, the only possible way is that provided by an ever-vigilant House of Commons.

§ Mr. Silverman

After the event.

§ Sir J. Anderson

After the event, certainly.

§ Mr. Silverman

Many people will be dead by then.

§ Sir J. Anderson

Every Minister who has to exercise executive powers of this character, as everyone knows, has in his mind the possible reaction of the House of Commons. If you sought to introduce any other form of control—a form of judicial control, for example—the whole purpose of this Bill would be defeated. I suggest that the Committee must make up its mind whether or not these powers are to be granted. If they are to be granted, they must be granted to the Executive.

§ Sir A. Southby

I hope that the hon. Member for Colne Valley (Mr. Glenvil Hall) did not misunderstand the point that I made. I entirely agree with the hon. Member for Ebbw Vale (Mr. A. Bevan). At a time like this, the powers must be granted to the Executive and the Executive cannot be hampered in the use of their powers by having to come to Parliament. I want an assurance that there shall be some effective way by which the House can afterwards express its view as to whether the Executive have exercised those powers rightly or wrongly.

§ Mr. Glenvil Hall

That actually was the point I was making.

§ Sir H. Williams

The Secretary of State told us that a vigilant House of Commons will make sure that everything is all right. The right hon. Gentleman the Home Secretary or the Minister of Home Security—he is not certain which—will take action. The courts are set up. With great expedition they shoct a certain number of people. They any shoot them, or cause them to be shot. [HON. MEMBERS: "No."] That is what we are talking about. We are talking about whether people are to be kilted who have not had a fair trial. That is what the Bill means. [HON. MEMBERS: "No."] I say "yes."

§ The Chairman

We are not talking about the Bill. We are talking about the Amendment.

§ Sir H. Williams

That makes it even worse. The right hon. Gentleman is going to make an Order, the, text of which I have not seen. He says that a vigilant House of Commons will take control of it. It will be laid on the Table. I am not certain whether it will mean an affirmative Resolution. [An HON. MEMBER: "No"]. I understand that it will not. It cannot be amended. We are talking about an Order—

§ Sir J. Anderson

Forgive me, but what we were talking about was the kind of Order which may be made after the Bill becomes law establishing particular courts in a war zone.

§ The Chairman

Perhaps I may add that I was about to call the hon. Member's attention to the fact that we are not discussing the making of the Regulations now. This Amendment does not deal with the matter. Perhaps if the hon. Member will look at the Amendment again, he will realise that.

§ Sir H. Williams

I was wondering whether this power to take action is to come into operation when the military situation is such as to require the institution of special courts, or where by reason of recent or immediately apprehended enemy action, the military situation is such as to require the institution of special courts. What these words mean I do not know. I do not think they mean anything. I think they are pure unadulterated eyewash, because either the right hon. Gentleman thinks that the military 725 situation is such that he ought to do this or that, or he does it by reason of recent or immediately apprehended enemy action. We are trying to examine that interesting point which we used to examine in the days before the hon. and right hon. Gentlemen alongside me and behind me decided that "genuinely seeking work" was not a proper phrase, because you had to examine the state of mind of the person concerned. What we are doing now is examining the state of mind of the right hon. Gentleman. You have to examine his state of mind as to where the military situation is such as to require the institution of special courts, or the state of his mind as to here by reason of recent or immediately apprehended enemy action, special courts must be instituted for the trial of offenders, There is no difference in the state of the right hon. Gentleman's mind, except as indicated by this change. He hoped by these words, which mean nothing, to persuade a difficult House of Commons to take a more kindly attitude to this Bill than it took last week, when I was not here. I think he will be disappointed. I think that this eyewash will not in the slightest degree satisfy the Committee. We are at this moment engaged in fighting two enemies: an enemy without and an enemy within. I do not want to see the right hon. Gentleman including himself in the enemy within by taking stupid powers to enable other people to be killed.

§ Mr. Pethick-Lawrence (Edinburgh, East)

I think that the point is somewhat simpler than some hon. Members seem to realise. The Bill, as originally drafted, gave the Home Secretary the power of decision. The Bill, as it will be drafted after the Amendments are carried, still gives him that power of decision. What, then, is the difference? I will try to explain what, in my view, the difference is. The Bill, as it originally stood, gave insufficient indication of the circumstances in which the Home Secretary would be entitled to use these powers. The Bill, if amended in the way that the Home Secretary proposes, will give a fairly precise indication, as the hon. and learned Member for Ashford (Mr. Spens) realises. It is true, as my hon. Friend 726 the Member for Nelson and Come (Mr. Silverman) says, that even if we insert these words, they do not give a legal remedy against an abuse of power by the Home Secretary, but that is not to say that they do not give a political remedy. The fact that the Home Secretary, by reason of this Amendment, explicitly declares some limitation on the circumstances in which he is likely to use those powers, puts this House in a very different position from what it would have been in if we merely left that understanding implicit. The fact that the Home Secretary, in accordance with the wishes of the House of Commons on Second Reading, and after meeting some of us the other day to discuss the matter, has seen fit to go as far as to give a definite indication of the kind of circumstances in which he is likely to use those powers, and is, therefore, giving the House, in future, time to round upon him if he uses the powers otherwise, goes a long way to meeting the wishes expressed by hon. Members and I shall vote for the Amendment.

§ Mr. Ernest Evans (University of Wales)

I think, with great respect, that some Members of the Committee have been rather unfair to the Home Secretary. On Second Reading a great deal of anxiety was expressed lest these powers might be used in a very wild way, without any sort of definition as to the circumstances in which the Home Secretary would conceive that he should use them. It was in response to the appeal which was made on Second Reading that the right hon. Gentleman tried to meet that criticism. When I heard that criticism I thought that the right hon. Gentleman would have great difficulty in finding words to meet it. The hon. Member for South Croydon (Sir H. Williams), who has just spoken so eloquently, has not, so far as I can see, put any Amendment on the Paper which would meet that criticism in better terms, and I do not know that any other Member has discovered better terms to meet the criticism. The point is that either we give the Government this power or we do not. If we are to give it, the Amendment which the right hon. Gentleman has put down strengthens the power of this House in criticising, attacking, defeating, turning out of office and condemning.

§ Mr. Silverman

My objection to this Amendment is that it subjects the action of the right hon. Gentleman to a political sanction always when in reality it ought to be subject to a legal sanction. It seems to me to attempt to meet the criticism by a form of words, without altering the actual situation in any degree at all. If you are to apply special courts, special laws and special penalties in a particular area, the circumstances in which you apply that power ought to be under the control of some judicial authority and not merely subject to the decision on political grounds of a particular House of Commons.

§ Mr. Groves (Stratford)

Coming as I do from an area near the coast I have been a little disturbed about this matter, but, on the other hand, I feel that the Amendment strengthens the hands of the Home Secretary. As I have listened to this Debate I have wondered whether "enemy action" means "non-British." I wonder what extra powers the Home Secretary needs to deal with the area from which I come.

§ The Chairman

The hon. Member cannot raise that question on this Amendment.

§ The Chairman

The next two Amendments on the Order Paper are obviously one in substance.

§ Mr. Bevan

I beg to move, in page 2, line 9, to leave out "the."

The purpose of this Amendment and the following Amendment—in page 2, line 9, at the end, insert: made on or before the thirty-first day of July, nineteen hundred and forty"— is to limit the power of the Home Secretary to the first set of Regulations under the Bill. He may quarrel with me about the date, and think that it is too early. I shall not worry about that. If he wants to put the date a little later, I do not think that my hon. Friends and I will 728 disagree. He might not have enough time before the end of the month to make his Regulations. When the Home Secretary moved the Second Reading of the Bill he was careful to explain what he proposed to do under the Regulations which he intended to issue in pursuance of the Bill. As hon. Members will recall, we were very suspicious because what he said he proposed to do under the Regulations was not, in fact, contained in the Bill. We said it would be far better if the Bill itself contained whit he proposed to do. But that cannot be done without an entirely new Bill, so we are faced with the fact that we are entrusting the Home Secretary with certain powers, and we are limiting, as far as we can, the kind of Regulations he will issue under the Bill. Nevertheless, the limitations we can impose upon him are not very considerable and, therefore, he may issue Regulations which are very wide in character. This business is fresh before the Committee, and we shall watch the next Regulations vigilantly, but unless this Amendment is carried, the right hon. Gentleman can afterwards issue a series of Regulations which may amend the first set of Regulations and the only limitation upon them will be the nature of the Bill we are now considering.

Everybody agrees that these limitations are not sufficiently narrow. Let the right hon. Gentleman embody all he wants to say in his first set of Regulations, and having done so, let his power to issue more Regulations die. If he wants more power he should have to come to the House. We do not want a series of Regulations which need not come before the House at all. They may need a Prayer, but by that time we may not be in a position to pray, despite the Foreign Secretary's broadcast last night. It seems perfectly reasonable that we should ask the Home Secretary to embody all he wants to obtain, in his first set of Regulations. I know this is unusual, and that it is customary to give the Executive power to issue Regulations in definitely in accordance with the terms of a Bill, but this is a very unusual piece of legislation and we suggest that the House of Commons should reassume its powers over the Home Secretary in respect of this Bill, if it can possibly do so. There is another thing which would be a safeguard. If the Home Secretary knew that his power to issue Regulations 729 died on a certain date, he would try to put everything into the Regulations, and when he did so we who are on the alert would examine them much more closely than if he had his Regulations by instalments.

That is the technical aspect of the Amendment which, the Committee will agree, is of considerable importance. There are, however, one or two general observations I would like to make on this matter, and I do not make them with any desire to be offensive to the Home Secretary. We have given him great powers during the last 10 months, but I am bound to say that neither the House of Commons nor the country has been satisfied with the way in which his powers have been used. The right hon. Gentleman is a very able man indeed. He has had great experience abroad and at home, but he is not what I should call a good House of Commons man. He was not in the House long enough before he received his promotion to the Front Bench. It would have been infinitely better for us and the country had he served a longer apprenticeship as a back bencher.

§ The Chairman

I do not see how this comes within the Amendment. The hon. Member is now discussing an individual Member of the House. The Amendment deals with a person who may, for the time being, be the holder of a particular office.