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

§ The Chairman

There was a little doubt in my mind about selecting the first Amendment on the Order Paper in the name of the hon. Member for the English Universities (Mr. E. Harvey), but I will call the hon. Member so that he may move it, with the reservation that if I find it necessary I shall withdraw it from the Committee.

§ Mr. Edmund Harvey (Combined English Universities)

I beg to move, in page 2, line 18, to leave out "no review or to."

I thank you, Sir Dennis, for giving me the opportunity of moving this Amendment, the effect of which is to provide that there shall be an opportunity of review in all the decisions of the special courts. The Home Secretary has made it clear that he regards it as of the utmost importance that these courts should function with celerity. I think that the Committee recognises the need for that, and this Amendment would in no way prevent the speedy functioning of the special courts, but it would secure that there would be an opportunity left open in all cases for review of the decision of the court. We are in this Bill taking away, because of the present emergency and the special difficulties of the areas concerned, safeguards that have been regarded as of immense value by the citizens of this country. Trial by jury necessarily disappears because of the special conditions prevailing at the time we are contemplating.

If that is taken away, we ought to secure therefore that there should at least be an opportunity for some form of review to replace the right of appeal in every case. It applies with the greatest importance to cases of capital punishment. I am aware that in those cases the Home Secretary always, in the ordinary course, 832 exercises his duty of advising as to the use of the Royal Prerogative. That would not be interfered with in any way by providing for a review, but the review would take the place that the Court of Criminal Appeal now takes and give an opportunity for further consideration of the circumstances, and, if need be, of new evidence that might be adduced, which it was not possible for a special court, sitting in an emergency and called very hurriedly, to consider.

Already the Government have felt it right to have a general review of all cases where offenders have been brought before a court and sentenced, under a recent Regulation, for gloomy and depressing propaganda. If it is necessary to have a review in such cases, surely it is far more necessary that there should be an opportunity of reviewing the more serious cases which are likely to be dealt with by these special courts. There may not only be cases of capital punishment; there may also be heavy sentences, and it is very desirable that in those cases, too, there should be opportunity for review. It is not enough to say that when the emergency is over months or, perhaps, years hence, there will be a general review of any such long sentences. We all know that the best judges may sometimes make an error of judgment. The decisions of the Court of Criminal Appeal show that, and therefore we ought to have provided in the framework of the Bill itself some machinery for review and leave the detailed machinery for the Home Secretary to work out in the Regulations. It is desirable that Parliament should secure this as a right of the subject, and I hope the Home Secretary will make it clear that he does contemplate such review in all serious cases and will agree that some words should be inserted into the Bill which shall secure this important right for those which come before a special court.

§ Mr. Messer (Tottenham, South)

I desire to support the Amendment, because I believe that not merely in the operation of the law but in the principle behind the law there is much to be said for giving anybody who may be charged the feeling that he will get a fair deal. It is not merely that the law should be just, but that it should appear to be just, and it is not merely that it should appear to be just on the part of those administering it, 833 but to those who may be, for the time being, victims of it. One can easily understand the difficulty in which the Home Secretary will find himself, for this is quite a new type of legal machinery. I want to commend the Bill to the extent that it does avoid the operation of martial law that otherwise would have been used in substitution for the civil process. Notwithstanding that fact, however, I realise that we may find a set of circumstances with which it is most difficult to deal, because of the confusion existing at the time of the commission, or alleged commission, of the offence, in the slow manner of our ordinary courts of justice. However one may argue as to the necessity of the expediency of the case, there must be given to the individual the right which he has in every other circumstance—the right of review of his case. So far as I understand it, if in this instance he is not to be given the right of review, it will be the only type of legal machinery, with the exception of martial law, where the individual is not given some soft of appeal right. It is because I believe that we have to be prepared and because of the situation in which we find ourselves that we must be willing to surrender a great deal of our liberty, but there are limits which must be set so that the country shall have the feeling that at any rate there will be less chance of injustice being done than would have been done by panic action at a time when emotion has obtained the superior power it always possesses over the reason of people who are administering the law.

§ Sir Irving Albery (Gravesend)

So far as I remember, under military law, if there is no actual appeal, there is a review of a sentence, and it is always confirmed by higher authorities. Therefore, I must admit that when I saw this Bill one of the things which concerned me most was this Clause, which provides that there should be no review. I cannot help feeling that judges and justices who might have to pass death sentences would themselves much prefer to have the knowledge that after they had passed such a sentence it would still have to be confirmed by a higher authority. There is one other reason why I think this is extremely important, and it is this: I can imagine cases arising where the death penalty is the appropriate sentence 834 and where, under the necessity of discipline, law and order, the judges may feel it highly desirable that they should pass the death sentence and yet, at the same time, would wish to have at the back of their minds the thought and knowledge that, the death sentence having been passed, it would still be possible for some higher authority to remit the sentence or impose a lesser penalty.

§ Mr. Silverman (Nelson and Colne)

I have no reason whatever to know what sort of answer the Government will give to the appeals made to them, but it would not be unexpected if the Home Secretary said, "I quite recognise that there ought in most cases to be some right of appeal, and I propose to deal with it when I make the Regulations under the Bill." I hope that on this occasion, however, the Minister will not make that answer. I remember that in the Second Reading Debate, when it was suggested to the Government that the House was very ready to give them all the powers they desired, but thought those powers ought to be defined in the Bill, which ought not to be left as a kind of blank cheque to be filled in by the Government, the reply of the Attorney-General was that the Government could not, in a Bill where speed was necessary, provide a new judicature dealing with every point of principle and procedure in the way in which the administration of justice in this country would be normally dealt with. On the whole, I think that was a reasonable claim to make, but it ought not to be carried too far. There are some major points of principle which could be, and which ought to be, in the Bill. We cannot ask that they should all be closely defined, but when you are dealing with such elementary aspects of justice as the right of representation and the right of appeal, is there really any insuperable difficulty in putting them into the Bill?

If the Government took the view that an appeal or review should not be provided, no doubt they would make that case, and we should have to consider it on the merits. But if I am right, as I think I am, in assuming that they do not say that; if their view is that where circumstances permit, or in certain classes of cases, there should be some appeal or review—if they concede that principle 835 surely they will also concede the principle that on such an important point the right of appeal should be safeguarded in the Bill itself and not left to the discretion of the right hon. Gentleman or his successors or to some discussions in which, necessarily, only a few of us can take part. I agree that it may not be possible to define that right in detail in the Bill. I agree that it may be necessary to deal with some part of it by Regulation, but unless the Government say that there should be no review or appeal at all, provision should be made for it in the Bill If the Government concede the principle of a review or appeal, let them make no bones about it. Let them make sure that that right is preserved to the citizen, in the Bill itself, so that it shall not be open to any Government or any Minister at any future time, to deprive any accused person of a right which he ought to have, without getting the authority of this House for such deprivation. It cannot be a matter of argument that in most cases the right of appeal or review ought to exist, and if that is common ground, I see no reason why the Bill should not provide for it and put it beyond dispute.

§ Commander Sir Archibald Southby (Epsom)

I am not sure what the Mover of the Amendment has in mind. It is not clear whether he wants an appeal from the sentences of these special courts or a confirmatory review of their findings. If the former, my own view is that if it is decided that these special courts are necessary in the circumstances of the time, it will be impossible to have the ordinary machinery of appeal such as now exists. Obviously, that would defeat the end for which the courts are being established. But if the Mover of the Amendment had in mind that there should be a review of the findings of the court and not an appeal against those findings, I cannot see why the Government should not strengthen its position in the eyes of the people by making it clear, in the Bill and not in the Regulations, that the findings of these courts will be subject—in the same way as the findings of courts martial and in no other way—to review by some other individual who will countersign the sentences.

In the case of the ordinary sentence of imprisonment or a fine, I do not think there is much which need trouble us. No 836 doubt, at the end of this war, which may come soon, or may be a long time ahead—though I think perhaps it will be soon—any sentences of these courts, which are thought to be manifestly unjust, will be capable of review. They can be brought up in this House with the demand that an inquiry and review should take place. But the death sentence is a different thing. You can remit a sentence of imprisonment which has been passed on a man, and you can return him what he has paid as a fine, but if he has been hanged or flogged you can never undo it. As far as the death sentence is concerned, there should be confirmation of the findings of the court by somebody else, I do not mind by whom—it may be the Home Secretary, or the Chief Commissioner, or the senior military officer of the district. But somebody else should confirm the finding in the same way as the findings of courts-martial are confirmed. I do not think the hon. Member for South Tottenham (Mr. Messer) was correct when he said that in the case of courts-martial there was no review but there was an appeal. It is the other way round.

§ Mr. Messer

What I did say was that there was no other case except in martial law in which there was no review.

§ Sir A. Southby

I thought the hon. Member said "courts-martial."

§ Mr. Messer

No, martial law.

§ Sir A. Southby

I think the object of the Government is to strengthen, in the minds of the people, belief in these courts, and the feeling in this Committee and certainly the feeling outside, is that whoever may be president of a court, however good a judge he may be, one man's finding ought not to stand without being countersigned by somebody else. As I say, in the case of fines it does not matter so much, but in the case of the death sentence such a procedure is essential and I think it the duty of hon. Members here to see that some provision to that effect is put, not into the Regulations but into the Bill which is the proper place for it. We should not be doing our duty, if we did not press the Government to insert such a provision in the Bill. I know that the Home Secretary is anxious to meet us. No doubt there are legal difficulties in the way, but I ask him to give the matter earnest consideration. This 837 Amendment may not carry out exactly what the Mover intended, but some form of words might be found which would make it clear that there was to be some review of the finding of the court, apart from that involved in the existing exercise of the prerogative of mercy by the Crown.

§ Mr. Hannah (Bilston)

It was impossible not to be impressed by the speech of the Mover of the Amendment, and it is unnecessary to enlarge on what has been said. Roger Ascham says somewhere that when you want to say a thing over again, it is much better to repeat the same words, instead of pretending that it is something different. I agree with practically everything that has been said by the previous speakers. This Bill, undoubtedly, has roused a certain amount of suspicion in the country. Nobody can deny that. I cannot imagine anything which would do more to remove that suspicion than the acceptance of this Amendment, apart from the very high respect which we all feel for the hon. Gentleman who moved it. The Amendment can do good, and I do not see how it can do any harm. Therefore, I strongly urge it on the Home Secretary.

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

I realise that concern has been felt in many quarters of the Committee with regard to the matter now under discussion, and I say, frankly, that I appreciate and sympathise with that concern. I shall try to clear the issue. I think there are several considerations that we should, if possible, keep clearly in mind. In the first place, when we talk of a review, we must be clear what we mean by a review. We might mean a review by some judicial process. We might mean the sort of review which takes place in connection with the exercise of the Prerogative of mercy. That is the first point on which we have to be clear. There is also this important consideration in connection with any review of sentences. The review of a sentence which is not a sentence of death is one thing. It can be undertaken, within limits, at any point of time, but if there is to be a review of a death sentence, it must, for practical reasons, be within a very limited period of time.

838 Let me say first that what we had mainly in mind in inserting these words which it is proposed to leave out, was a review of a judicial nature. It seemed to the Government, having regard to the circumstances in which these special courts would be set up, that however desirable in theory it might be to provide for some further judicial review by way of appeal, or by way of processes more familiar to hon. Members learned in the law than to me—though I know the names by which they go, such as "mandamus" and "certiorari" and so forth—it seemed to us inconsistent with the purpose of the Bill, which is to provide a simple, expeditious, criminal procedure, to attempt to include provisions for a further judicial review. When we come to the other question of the review in connection with the Prerogative, it was never in our minds—and I want to make this perfectly clear—that we should seek to exclude, either in the case of the capital sentence or in the case of lesser sentences, the right which everyone has to appeal to the clemency of the Crown. Indeed, in the case of the death sentence, as I think hon. Members know, a review is made by the Home Secretary as a matter of course, irrespective of any representations which may be made by a convicted person before sentence of death is carried out.

In regard to what I have said about a judicial review, I think I have made it clear that we do not consider that, in practice, it would be possible to make provision for such a review. My hon. and gallant Friend the Member for Epsom (Sir A. Southby) appeared to have in mind something of an intermediate nature between a judicial review and a review in connection with the exercise of the Prerogative, when he spoke of some other person countersigning the sentence. I think he had in mind the analogy of a court-martial, but I do not think there is an analogy between the proceedings of a court-martial and those of the sort of court contemplated in this Bill, a court which will be presided over in every case, we believe, by an officer experienced in judicial work of a high order. We hope that for the most part, the presidents of these courts will be judges of the High Court. It would surely be out of the question to provide that sentences passed by a judge of the High Court or a 839 person of corresponding standing, should he countersigned, as it were, by some other person.

§ Major Milner (Leeds, South East)

Sentences are frequently altered on appeal.

§ Sir J. Anderson

Yes, sentences are altered on appeal in some cases, but, as practical men, we cannot see that it is possible in this case to provide for an appeal by judicial process. I do not want, however, to be difficult or obstructive, and I suggest that we might go a long way to meet the genuine difficulties and misgivings of those who have criticised the Bill as it stands, by introducing two Amendments. I will indicate the general effect of the Amendments which I have in mind. In the first place, we might add words to make clear that the kind of review which will be excluded or which may be excluded, is review by judicial process or review by a court. That is the first Amendment, which might, perhaps, be made on the Report stage. The other Amendment which I would suggest deals with the particular case of the death sentence.

I am quite willing to propose on Report the insertion of words which will make it quite clear that provision must be made by Regulations for securing that no sentence of death shall be carried out until the question of reprieve has been duly considered. [HON. MEMBERS: "By whom?"] That means considered by those whose duty it is to advise the Crown, because a reprieve is the exercise of the Prerogative of mercy, and only a Minister can effectively consider what advice should be given to the Crown. There is nothing at all in the Bill to suggest that any exercise of the Prerogative which would be available in ordinary circumstances is to be excluded in the case of persons tried by these special courts. Whether the sentence be a capital sentence or something less, the Prerogative remains intact. In regard to the death sentence, there will be a specific provision to ensure that the Regulations shall provide that such a sentence shall not be carried into effect until there has been proper consideration of the question whether the Prerogative of mercy can be exercised.

§ Mr. Messer

Could not the right hon. Gentleman more easily do that if these words were deleted?

§ Sir J. Anderson

That is rather a technical matter. We will bring up whatever form of words we think most appropriate on Report. I am dealing with the substance of the thing now. I am not a lawyer, but am dealing with it from the point of view of the Home Secretary, as the Minister responsible for the Bill. Putting in the words that I suggest in regard to the death sentence will not, of course, have the effect of limiting the exercise of the Prerogative in other cases. Cases in which a lesser sentence is imposed are, from a practical point of view, on an entirely different footing from the case of the death sentence. In the case of sentences less than the death sentence there will be nothing to prevent the Home Secretary, the Minister responsible, from reviewing at any time in whatever way he thinks most appropriate, individual sentences or sentences in general which may have been passed in a time of grave emergency in a particular area. The Prerogative will remain absolutely intact. I hope that what I have said will go some way, perhaps a long way, to relieve the anxieties of hon. Members in this matter.

§ Mr. Ernest Evans (Universitiy of Wales)

The Home Secretary has made a very important speech, and he expressed the hope that it might allay a good deal of the difficulty which many of us feel. First of all, let me dispose of the trouble that has arisen in the course of the discussion between the word "review" and the word "appeal." As far as these courts are concerned, I have admitted from the first that I did not see how the Home Secretary could give a right of appeal, but in regard to review I felt that there was a case for pressing upon him the desirability of meeting apprehensions which had been expressed. To-day he has told us he is trying to meet our difficulty by saying that he will give a review. He has offered us a review of the sentence, not a review of the decision, but only a limited review of the sentence in the case of the death penalty. What is to happen in the other cases? In saying that, he is not giving us any concession at all. The right of reviewing a sentence of death is inherent in the Crown, and he cannot take it away from the Crown. No one else can take it away from the Crown. He is not making any concession by saying he is prepared to review sentences of death.

841 But there is a much more considerable point than that. These courts are being given very great powers. There may be cases in which the accused person is entitled to complain that he has not had a fair trial, and it must be remembered that it is a trial by two or three persons. It is not a trial by jury. I was hoping the right hon. Gentleman would say, "I will make provision that a review shall be provided." He has not done that. I am wondering why. He has asked for most of the trouble that he has got. In this case he has asked for it because in this Clause he talks about the proceedings of such courts being subject to no review or to such review as may be so provided. What had he in mind when he introduced the Bill? Did he have it in mind that there should be no review in any circumstances? If so, why did he not say so? Or did he have it in view that there should be a review in certain cases? He must have held the one view or the other, so why on earth go to the trouble of saying either "subject to no review" or "subject to such review as I under Regulations may declare"? It is simply adding to the difficulty and absurdity of the whole situation to introduce a Clause containing those words.

There is, however, a much more serious issue of very grave constitutional concern, because the right hon. Gentleman introduced into his speech two words of whose meaning he said he did not pretend to be perfectly certain—"mandamus" and "certiorari." I understood, on my reading of the Bill, that whatever powers the Home Secretary took to himself, the old rights of mandamus and certiorari were not affected, and I think I am not alone in so thinking. I did not raise it before, because I took that to be the position. But the Home Secretary himself has introduced a statement which completely revolutionises the position, because, as I understand it, he interprets the Bill as giving him the right to deprive citizens of the country of the old standing rights of mandamus and certiorari. I should like to know from the Attorney-General whether that is the position, because, if it is, the House will not let him have the Bill this week or next. So long as those fundamental rights of the British citizen are still preserved, whatever powers the Home Secretary may require for defence purposes, I am prepared to let the Bill go though, but if he tells me it means that 842 those fundamental rights are to be taken away from citizenship of the country, I will fight the Bill line by line, word by word, on the beaches, on the hills, and everywhere else. I hope the Home Secretary will reconsider in the course of the next half-hour whether he really meant what he said about that, because it is the most serious thing I have heard proposed in the House or anywhere else. I beg him to clear up the matter once and for all.

§ The Attorney-General (Sir Donald Somervell)

I think there is some misconception about mandamus and certiorari. They are writs directed to inferior courts, primarily directed to a state of affairs when an inferior court may have exceeded its jurisdiction. These special courts will have complete criminal jurisdiction. The whole basis of this Bill is that there should be a court ready to try any offence, however serious, which the military situation demands should be tried speedily. Therefore, it seems to me that the idea that some right is being taken away, or that people anticipated that these courts would be subject to a writ which is directed to absence of jurisdiction in an inferior court really misconceives the position which these courts will have.

§ Mr. Shinwell (Seaham)

I have little or no acquaintance with these legal definitions. I approach the matter, as I imagine most of my hon. Friends will, from a practical and commonsense point of view, indeed from the standpoint of the man in the street. When some of us met the Home Secretary we expressed great concern on this matter, and I gathered that he was somewhat apprehensive himself of the effect of the action that is contemplated in the Bill. He promised, as I understood at the time, to furnish a form of words which might meet the views which were then expressed, and which indeed have been expressed in the course of this Debate, but the offer that he has made in the two suggested Amendments does not go as far as some of us would like. As it seems to me, the review that he proposes is no more than the Prerogative itself. After all, it is always open for the legal representative of the person sentenced to death to apply for an appeal. The Prerogative 843 is always there, and, as I understand it, it takes the form that representations are first of all made to the right hon. Gentleman. Therefore, I detect no substantial difference.

What is the right hon. Gentleman's purpose in this regard? He envisaged circumstances where speedy legal process is essential. But surely that only applies to an area where there is possible confusion or disorganisation and where the courts cannot normally function. Surely, it will not apply to the whole of the country, and it will be possible for a court of appeal, for example, to function in some part of the country where confusion does not reign. Suppose that a court of the kind contemplated in the Bill sat in the North-Eastern part of the country or in Wales, where there was confusion arising out of military operations or apprehended military operations, and a sentence of death was passed by the civil court. Surely, the appeal against that sentence could be heard in London, or Oxford, or Reading, or Cirencester, or in any part of the country where it was possible for a court to function normally. Consequently, I cannot see why an appeal of the kind suggested should not be permitted.

I want to put to the right hon. Gentleman a point of view which I have expressed before. I can envisage, in the circumstances resulting from a state of confusion arising from military operations, that there would be a breakdown of the food distributing machinery, and, as a consequence, working men and their wives might be unable to obtain food supplies. Is it not possible for hon. Members to contemplate that those people, in a state of starvation or semi-starvation, might engage in what is ordinarily described as looting—taking a loaf of bread from a nearby baker's shop that has been vacated because of military operations, or purloining a tin of salmon or corned beef? I understand this would be regarded as looting, and it might well be that, in the circumstances prevailing, a civil court might regard such an act as justifying a sentence of death, largely from the standpoint of its deterrent effect. I understand that one of the primary purposes of the Measure is that it should act as a deterrent against looting. I do not want to see any working-class friend of 844 mine or of any hon. Member placed in that position.

§ Sir A. Southby

Anybody—we are all in the boat together.

§ Mr. Shinwell

Anybody faced with the possibility of starvation might be tempted to do the same thing. I do not want to see anybody placed in that unfortunate position. It seems to me that there ought to be a right of review, in the sense of a right of appeal, to the highest court in the land. I cannot see that there would be any physical difficulty in constituting a court of appeal so that sentences of this kind could be properly reviewed, with evidence submitted, if need be, and proper representations of a legal character tendered. In the case of minor offences or lengthy sentences—when, for example, a person is sentenced to 10 years' or 15 years' imprisonment—the matter is not the same, because such sentences are always open to review. Questions might be asked in the House at any time and there might be a reduction of the sentence. When a man has been sentenced to death, however, and the sentence has been carried out, I cannot see that there is any advantage in asking questions in the House or making representations to the Home Secretary. There is a vital distinction between sentences of imprisonment for any kind of misdemeanour and sentences of death that may be passed by a civil court. I appeal to the Home Secretary to carry the matter a little further and not content himself with the very modest proposal he has made. The right hon. Gentleman must in this matter bow to the will of the Committee, and to what I imagine is the will of the whole country. We go a long way with him in this Bill. We are anxious to prevent looting or crimes being committed at a time when it is essential that organisation and good conduct shall prevail. At the same time, we do not want to place in the hands of the new judiciary which is being established by this Bill power to sentence people to death for crimes which ordinarily might entail only a modest sentence. I hope the Home Secretary will re-consider the matter and agree to the Amendment that has been moved.

§ Mr. Pritt (Hammersmith, North)

With regard to what was said by the right hon. and learned Gentleman the Attorney-General, I think that he was very largely 845 wrong concerning the law. In the first place, prohibition and certiorari can be directed only to inferior courts, but mandamus can be directed to a much wider range of courts. He was wrong also in telling the Committee that these courts could not be inferior courts. One cannot tell until the Regulations are made what sort of jurisdiction they will have, and—speaking offhand, and it may be wrongly—my first impression is most emphatically that any court set up under the powers given by this Bill, and described as a special court, even if it were given full jurisdiction, would be regarded by the High Court of Justice as a court inferior in the sense that it would be a court to which the High Court could direct either prohibition or certiorari. There may be some hon. Members who are lawyers who disagree with me in that.

The really important point is not whether the Attorney-General was right or wrong in describing what he believes to be the effect of the Bill in this matter, but what is the Government's intention, because there are still opportunities to make this Bill one thing or the other. From the Attorney-General's point of view, it is plain that the Government intend that the High Court shall not test the powers of these courts in any way, by prohibition certiorari, mandamus, review, or anything else. Consequently, if that be the view of the Government—and we know that it is not only the view but the intention of the Government—we shall have to govern ourselves accordingly. When one puts this together with what was said by the right hon. Gentleman the Home Secretary, it means that the Government's desire and intention are that these courts shall be subject to no sort of review anyhow or anywhere, except, of course, that there can be an appeal to the Prerogative of the Crown. There can always be an appeal to the Prerogative of the Crown. The only thing which the Home Secretary has offered is that any person in respect of whom anybody wants to make an appeal to the Prerogative of the Crown shall not be dead before the appeal is made, but shall be kept waiting until the Home Secretary has had an opportunity for an examination.

I cannot see the difficulty about providing for a review. I can understand more or less that summary and strong courts, the decisions and sentences of 846 which shall be clear and unquestionable, are wanted in time of great emergency, when there cannot be a lot of paraphernalia. Once the court has convicted a man and passed a sentence on him, it is either a sentence of death or it is not. If it is a sentence of death, the Home Secretary offers to keep the man alive until an application can be made to the Home Secretary about him; if it is not a sentence of death, it will be the duty of the executive to keep the man alive and in custody. If one can go to the Home Secretary and talk about the man, what is the difficulty in going to some judicial court and talking about an appeal? If it be said that it would destroy public confidence in these special courts if provision for an appeal was made, then we have followed up till now a very efficient method of destroying confidence in all courts, because all courts except two are subject to a right of appeal, and that fact is one of the reasons they work very well. It is a commonplace among all lawyers that, except in courts of the very highest wisdom, one way of making them work badly is to let them know that they are not subject to appeal. It is a question of human failings, and judges are human. In courts where, for one reason or another, in respect of particular cases or in respect of all cases, they happen to be free of perhaps even the entirely subconscious check of the fact that what they say and do may be reviewed in the Court of Appeal, they do not behave as well as courts which are subject to appeal.

Therefore, I humbly suggest to the Committee, first, that the Attorney-General has pointed out that the Government intend to deprive us of one group of remedies which we all thought were present, and which certainly ought to be present; and secondly, that the Home Secretary is offering us, with an air of great plausibility, as a reason for our not pressing the Amendment, something which amounts to absolutely nothing. I suggest further that full and proper provision for appeal, as long as it is not vexatious or long-drawn-out, would make no difference whatever to the efficiency of the courts set up under this Bill.

§ Mr. Lewis (Colchester)

I should like to follow the first point that was made by the hon. and learned Member for North 847 Hammersmith (Mr. Pritt). I listened very carefully to the speech of my right hon. and learned Friend the Attorney-General. I should always have the greatest diffidence in appearing to differ from him on a matter of law, but it occurs to me that this afternoon there was perhaps something which he overlooked, and I wish to put the point to him. He suggested that it was not reasonable to anticipate circumstances in which proceedings by way of certiorari would be possible in respect of one of these special courts because they would have so wide a jurisdiction in the criminal law that it would not be possible to suggest that something before them was a matter which they could decide. Did he not overlook the fact that these courts may have a very sharp territorial limit?

Suppose that a court is set up for the County of Norfolk, and that an offence takes place in the County of Suffolk. Does my right hon. and learned Friend tell us that if the person who commits the offence is apprehended and taken before the special court in Norfolk, he will not have the right before the High Court to take proceedings by way of certiorari, and say that the special court had no jurisdiction in his case? Surely, that is a very serious point, and either the Attorney-General overlooked it, or we are all under a misapprehension as to what powers would be left to the High Court in the matter. Will my right hon. and learned Friend tell us whether, in a case where a person is apprehended outside the limit of jurisdiction of the special court, brought within their limit of jurisdiction, and tried by them, such a person would have any right by proceedure in the High Court to object to being tried by the special court?

§ The Attorney-General

We are considering what powers can be taken under the Bill. If a court proceeded on the basis of having no jurisdiction, it might be that the whole proceedings would be null and void, and that might apply to proceedings in the High Court itself. What I was indicating in my previous remarks was that these words would give power to put these courts on the same basis as the High Court, and that as it was the intention of my right hon. Friend, and obviously the basis of the whole idea, that 848 their jurisdiction should be complete, it did not seem to me that the circumstances in which certiorari or prohibition are a valuable right would in fact ever come into existence. So far as Norfolk and Suffolk are concerned, my hon. Friend the Member for Colchester (Mr. Lewis) has, no doubt, been following the various changes in the administration of justice made necessary by the war, and he will have seen that so far as the ordinary courts are concerned, for obvious reasons, the ordinary rules as to venue have been relaxed, in view of the fact that we might be faced with circumstances where courts could not operate in particular cases, and where the rigidity of old principles of venue would impede the administration of justice. In certain cases the ordinary law of venue has already been relaxed by this House. It would be clearly right that the Regulations should provide for such elasticity with regard to venue, so that the problem put by my hon. Friend the Member for Colchester would not arise. The point of justice is that the trial should always take place under circumstances in which witnesses for the prosecution and the defence—

§ Mr. Silverman

I am afraid that the Attorney-General has misconceived the whole point. It is not a question of venue or rules as to where a court shall try an offence, but a question of whether an area in which the alleged offence was committed is an area covered by an Order. Taking the example of the hon. Member for Colchester (Mr. Lewis), suppose it had been declared that Suffolk was an area to which this Act should apply, and that just beyond the border of that area an offence had been committed, and in that case the special court to deal with the alleged offences went across the border outside its area of jurisdiction. That would not be a question of venue but whether the court had any jurisdiction. If I understood the question of the hon. Member for Colchester, is it not plain that the High Court would have no power to prevent the special court abrogating to itself a jurisdiction which it did not have?

§ The Attorney-General

I venture to suggest that, in spite of the speech of the hon. Member for Nelson and Colne (Mr. Silverman), what I was saying is relevant. In practice I do not think the case which 849 the hon. Member for Colchester suggested will arise. Let me deal with the question on the basis of jurisdiction. It is our intention that these courts, vis à vis, the High Court, should be on an equality. If one takes the analogy within the United Kingdom, these courts take the position of our own courts and the Scottish courts. It might be said that according to ordinary principles there was no jurisdiction in the Scottish courts to try something which had happened here, or for our courts to try anything which had happened in Scotland. In this case prohibition would not lie, nor does prohibition arise from one division of the High Court to another or from one High Court to another. For example, if there were grounds for thinking that the Divisional Court in a criminal cause or matter had done something in which it had no jurisdiction, there is no other division of the High Court to which you could go to get a writ of prohibition or a mandamus. The suggestion is that in these very exceptional circumstances these courts should be in the same position, vis à vis the High Court, as, say, the courts of assize, namely, that you cannot get a writ of prohibition from one against the other.

§ Mr. E. Evans

When the Attorney-General said that it is the intention that these courts shall be on the same basis as the High Courts, how is that intention to be carried out? Is it to be put in the Regulations? It is no good saying that that is the intention unless the Attorney-General proposes to take that course.

§ The Attorney-General

It is intended to put it in the Regulations, and this Bill is to enable Regulations to be made setting up courts. The Amendment which we are discussing is an Amendment relating to defining the scope of what can be done in the Regulations.

§ Mr. A. Bevan (Ebbw Vale)

I intervene in order to try to bring the Committee back to what we were discussing. I am bound to say that whatever misapprehension there may be between eminent counsel in the Committee, I have no such misapprehension at all. It seems to be perfectly clear that it was the intention of the Government to set up special courts from which there would be no appeal of any kind. That was the intention from 850 the very beginning, and if that intention is not embodied in the Bill, it will be, as the Attorney-General says, embodied in the Regulations. As to whether that is a good thing, or a bad thing, I am not concerned, but what I am concerned about is that, as there will be no ordinary review from these courts, what sort of appeal ought we to give to an accused person? I do not know the names of all these things, but I believe I know the principles behind them. If it is possible for the ordinary process of justice to be applied in these cases, that prohibition and mandamus can be used, obviously the very obstructive process which the right hon. Gentleman wants to avoid will be introduced. The Attorney-General says, "Not at all. It is precisely because these courts are to work with expedition that this Bill has been brought in."

What does the right hon. Gentleman suggest? He suggested that in the case of a death penalty it would be desirable that he should review the sentence before it was executed. What in practice does that mean? It means, in fact, that in the middle of a great crisis when the Minister is involved in dealing with a large number of very important matters, he is suggesting that he will be able to deal with such cases quickly and give adequate attention to the decisions of these courts in respect of the death penalty. Is that a reasonable proposition? He suggested that it would be unreasonable to have any judicial authority to review the decisions of the High Court. That in fact will be done by the right hon. Gentleman in the Home Office. He will not stand before the Committee and suggest that he will be able to give these cases the attention they deserve nor that he can satisfy himself whether the death sentence shall be carried out or not. I suggest, firstly, that physically he will not be able to do it, and, secondly, that he ought to be exempted from the necessity of doing it. If he says that he already does it, my reply is that in such cases the accused person has come to him after having gone through several processes of law, and that, therefore, it is a comparatively limited matter he has to decide. But in this case he will have to review the death sentence passed by one court and one court only, and to do it adequately he will have to take into account all the facts. I suggest that the right hon. Gentleman should not set himself up as a High Court judge, which, in fact, he would be doing to do 851 the job properly. I do not think that a political office such as that occupied by the right hon. Gentleman should be exposed in the way it will be in the kind of circumstances that he has in mind. Many of these decisions may be highly controversial, and he seems to me to be taking a heavy burden upon himself in asking for these powers.

Is there not another very practical consideration to be borne in mind? The hon. Member for South Tottenham (Mr. Messer) addressed a very cogent argument. What happens? These courts are set up in conditions of emergency in a highly charged emotional atmosphere. But that highly charged emotional atmosphere will not be confined to where the courts exist. Does anyone suggest that the whole atmosphere of the country will not at once be changed? We shall all be living under conditions of crisis, and those feelings will be shared by the three judges, by a large number of people in the country, and particularly by the right hon. Gentleman. It is not merely a matter of taking the sentenced person from the area of disturbance, and letting his case be considered by the Home Secretary; it is time that matters. Time should elapse in order that the emotional atmosphere shall settle down before the review takes place. Why is it necessary to carry out these sentences at once? The individuals are in custody, and their powers of harm have been taken away. They cannot injure anyone. But if it is said that you are going to execute a person as a deterrent, then you must shoot him on the spot. If you are envisaging the kind of circumstances which might arise, you must make a spectacle of the offence, but the means of communication would also be disturbed, which would make that impossible. So the right hon. Gentleman's intentions will not be discharged by the method he has suggested in the Bill. I suggest that it is a perfectly reasonable proposition to have some form of review, not a review by the Home Secretary and not an appeal to the Home Secretary. There is no reason why there should not be a judicial tribunal established, ad hoc, not known to the judicature at the moment, nor related to the special courts, and that a special legal tribunal should review the sentences.

May I suggest a further consideration? It is the difficulty of collecting proper 852 evidence in circumstances of this kind. A sentence of death might be passed upon an accused person by one of these courts on evidence which had been collected very hurriedly and hardly tested in circumstances of the kind we envisage in which the court would want its sentence carried out quickly. The review by the Home Secretary will occur soon afterwards because, for reasons which I cannot understand, expedition, according to the right hon. Gentleman, is the essence of this business. The man is executed without any chance having been given to collect fresh evidence. He might have been able in normal times to collect evidence which was not available to him at the time of his trial, evidence which would satisfy the Home Secretary that the sentence was wrong. Ought we to withhold reasonable safeguards from the accused person? The right hon. Gentleman has not made out his case. Conceding everything he wants under the Bill, and even conceding that a special court of this kind, abstracted from the ordinary system of the judicature, is necessary, there is no reason under Heaven why we should not import into the Bill an opportunity for the sentence to be reviewed by a higher legal tribunal in calmer circumstances.

§ Rear-Admiral Beamish (Lewes)

Surely this Debate is an indication of the astonishingly phlegmatic character of the British people. With something like a very grave crisis impending, we have spent hours last night and a long time this afternoon discussing the details of what is, I admit, an important Bill. With the greatest respect, I would ask some of the hon. Members who have spoken against the Bill and who may have been in France, or who have firsthand knowledge of what happened there, to realise that time is the essence of progress in a matter like this. This country differs from other countries because we have not frontiers contiguous with those of other countries, from which refugees could pour in here, and also because our people are more phlegmatic. We are not likely to have the same difficulties as other countries. On the other hand, as I look out from my house over many square miles of country, all of which is in a defence area, I can conceive a situation arising of the greatest import, in which there would be an immediate 853 necessity for courts such as those we are discussing able to take instant action for the preservation of the State and the British Army.

I respectfully appeal to hon. Members to be a little less critical about the details of the Bill and to remember that the Home Secretary has already made a promise that the Regulations will be discussed and that representative Members will have an opportunity of examining them. I suggest, therefore, that the words which the Amendment proposes to leave out should remain and that we should trust the Home Secretary and the Attorney-General. It is amazing that it should be hinted, to put it no higher, that these courts are to be set up to act as some terrible scourge on the people of this country. I do not apprehend that anything of the kind is likely to happen. The point has been raised whether somebody who committed a crime in Norfolk is likely to be able to say that the court is not justified in trying him because it is sitting in Suffolk, There is nothing in the Bill to say where the courts should be set up, and that matter could easily be put right. I am seeking to persuade hon. Members who have spoken against the Bill, to withdraw their strictures and criticisms and to realise that to-day, to-night or tomorrow we may be in the thick of a stupendous crisis. I trust that the Home Secretary will not accept the Amendment and that Members will realise what a staggering situation may arise within a few hours.

§ Mr. Stephen (Glasgow, Camlachie)

The Home Secretary has made no concession. The effect of his statement is that there will be consideration of sentences by the Home Secretary as there is at the present time. Everyone took that for granted; at least, I did, and I cannot understand the type of mind which thought that that would not be done. Surely in setting up these courts it was the intention of the Home Secretary to have that constant review of death sentences which is implicit in the Prerogative. The hon. and gallant Member for Lewes (Rear-Admiral Beamish) said that Members would not talk as they did if they had been to France, and that we might soon be in the midst of a terrible crisis. What happened in France that would make it impossible for courts like those 854 proposed, to have their decisions subject to a review by a higher authority? There was nothing at all.

§ Rear-Admiral Beamish

Surely it is common knowledge that practically from one end of France to another, chaos reigned and no courts could act properly.

§ Mr. Stephen

The hon. and gallant Member does not carry his argument any further. If there was chaos in France and the courts could not function, obviously, according to him, this Bill is useless, because courts could not function if the same thing happened here. I think that there is a lot of defeatism and "jitters" in the minds of Members of the Government in connection with this matter.

§ Mr. Thurtle (Shoreditch)

And in the minds of others, too.

§ Mr. Stephen

We have had experience of it already in the fact that the Prime Minister had to state yesterday that a lot of sentences that had been imposed, would be revised because of the evident misunderstanding of statements by the Minister of Information and of the action that magistrates took. Probably those mistakes would not have been corrected had it not been for some organs of the Press like the "Evening Standard" and the "Evening News," which showed great common sense in connection with this matter. I cannot see why there should not be set up, as the hon. Member for Ebbw Vale (Mr. Bevan) suggested, an ad hoc appeal tribunal to which cases could go.

I suggest that a good deal of the difficulty in this matter arises from the imposition of the death sentence. Would it not be better to consider whether it is necessary to impose the death sentence and whether many of the difficulties in this matter might not be overcome, if the maximum penalty were life imprisonment? That would give an opportunity for revision in calmer times. The individuals concerned would be detained in the hands of the authorities and they could do no further harm. My impression, after lisening to the Debates on this Bill, is that the Government largely misunderstands the situation. I do not think that the chances of invasion are very great because I have heard so much about the strength of the British Navy and our 855 armed forces, and I do not think the people of this country should allow themselves to get so "jittery" and to think that the Germans are super-men, as some of them do. I would like the Home Secretary to consider carefully whether the real solution of this problem is not an ad hoc tribunal to which cases involving the death sentence could be referred.

§ Colonel Gretton (Burton)

This discussion has wandered very largely over legal arguments, which are always a mystery to the layman. Apparently there is always a division of opinion on legal matters and it is difficult to get unanimous agreement about them. It seems to me that these arguments are on a side line and have nothing to do with the main point. We are trying, in different ways, to secure that the severe sentences of these courts should not be the sentences of one court or one man, but should be subject to some kind of review. It is very desirable that the courts should act quickly and that sentences should be imposed and carried out without delay. For that reason, the severe sentences only should be subject to revision. It is really unthinkable that the death sentence, on which the argument in this Debate has centred, should be imposed without any review whatsoever on the ipse dixit of one judge, sitting, certainly, with assessors who would, however, be colleagues having no power to modify or influence his decision except by the expression of their opinion. I am not pressing that there should be a retrial of cases, because that would be a mistake, that would involve delay; but a revision by some other legal authority of higher calibre would go far to meet the objections of very many Members of this Committee.

The Home Secretary has really given us nothing. I think we all agree that there is no substance in what he proposed. It does not go any distance whatever to meet the objection that these very severe and heavy sentences, especially death sentences, can be imposed on the ipse dixit of one judge, of one court. It has been suggested that the existence of the Royal Prerogative should not be lost sight of, but that has always been operative, and there is nothing in this Bill to upset that. But there should be some- 856 thing more, and there is great force in the argument used by an hon. Member who recently addressed the Committee, that the Home Secretary will be heavily engaged with many other matters and not able to spare the time to consider revisions of death sentences and the advice which he may have to give to the Crown as to whether the Royal Prerogative should be exercised or not. I do not want to carry the matter too tar, and I have an Amendment later which would secure that lighter sentences need not be subject to revision, but these heavier sentences are a very different matter.

§ Mr. Lees-Smith (Keighley)

Having listened to this discussion, I think that the view of the Committee, as a whole, is fairly clear to us, and it is not an extreme view. I gather that the Committee wishes that there should be a review. The Home Secretary said that he would make a review, but the Committee wish for a review by some judicial as distinct from administrative authority. Although like the right hon. and gallant Member for Burton (Colonel Gretton), I know little about the law, I am very much impressed by the argument of one of my hon. Friends that a court sitting in these circumstances, with the knowledge that there will be no possibility of appeal or review from its findings, is likely to be a good deal more hasty and slap-dash than would be the case if it knew that its verdict, if too high-handed, could be upset. It would be a great pity to have a Division on this question, but I am sure that the Home Secretary sees that there will be a Division unless he makes some concession, and I ask whether it is not possible to set up an ad hoc tribunal of a judicial character which should act with considerable rapidity, almost with the same rapidity as the right hon. Gentleman himself would have to act. If he would make some proposal of that sort and arrange for it to be inserted in the Bill at a later stage, we might avoid a Division on this proposal.

§ Sir J. Anderson:

I should like to re-emphasise the point that was made by my hon. and gallant Friend the Member for Lewes (Rear-Admiral Beamish) and a point made earlier in the discussion by the hon. Member for South Tottenham 857 (Mr. Messer) that we have been in danger in this Debate of forgetting the sort of contingency for which we are trying to provide. We are trying to provide the means by which, as far as is humanly possible, we can avoid recourse to processes of an exceedingly summary character. If we do not set up these special courts and make as good provisions as we can, having regard to the conditions for which we are legislating, to render unnecessary a recourse to methods of summary justice, that course will be inevitable in the conditions of confusion and turmoil which we must contemplate and we shall be doing no service to our people. If we do not have these courts then, as the hon. Member for South Tottenham said, we may have instead what has been described as martial law. We may have the military authorities driven to the necessity, against their will, of dealing with offenders out of hand in order to cope with the situation which has arisen.

§ Sir I. Albery

I think it might be wise for the Home Secretary to get this point clearly in his mind. Speaking for myself, and I think probably for many others, I say that if it were a question of martial law, or military law, with the safeguards which are provided under it, I would much prefer it to this Bill with no safeguards.

§ Sir J. Anderson

I know that is the view of some of my hon. Friends and, as was pointed out on Second Reading, I think it is a wholly mistaken view, because under what is described as martial law or military law, safeguards are conspicuously absent. My hon. Friend is really talking of something quite different. He is talking of courts-martial, which are an entirely different matter. We really must try to keep our minds clear on this subject.

It was suggested by the hon. Member for Camlachie (Mr. Stephen) and repeated by my right hon. and gallant Friend the Member for Burton (Colonel Gretton) that what I had offered was no concession at all. The hon. Member for Camlachie said that he had assumed all the time that the Prerogative would remain intact, and that there would be no possibility of a death sentence being carried out before there had been adequate opportunity of considering whether the case was one in 858 which the Prerogative of mercy could properly be exercised. On that, all I can say is that I have discussed this Bill with a number of hon. Members, and I have very clearly in my mind the conviction that many of them were not at all satisfied that the words, which formed the subject of the Amendment proposed by the hon. Member for the Combined English Universities (Mr. E. Harvey), might not be held to have the effect of ousting the Prerogative which, after all, does involve something in the nature of a review. The first concession that I offered was designed to make it perfectly clear that that would not happen.

Let me come to the other point, the execution of the death sentence. I wonder whether hon. Members realise that under the ordinary law of this country, as it stands, there is no provision, nothing in the Statute law of the country designed to ensure that a death sentence shall not be carried out before there has been the opportunity for the Home Secretary to give consideration to the question of the exercise of the Prerogative. That is the fact. There is no provision whatever in the Statute law. It is a matter entirely provided for by rules made by the Executive, not, I think, under the control of Parliament. Surely it is rather unfair to say that it represents no concession at all to put into this Bill what many hon. Members have been asking for, a definite provision to do what I have said we always intended to do, namely, to secure that there shall be adequate time for consideration before a death sentence can be carried out. I claim with confidence that that proposal does represent a very definite safeguard introduced in the way it has been asked for by hon. Members—by an express provision in the Bill itself.

The hon. Member for Ebbw Vale (Mr. A. Bevan) said he could not quite see how it would be possible for the Home Secretary to give adequate time to the consideration of matters that might come before him in connection with the exercise of the Prerogative. Let me make it clear that in the case of a capital sentence the exercise of the Prerogative is not dependent upon any application or appeal from anybody, it is automatic in every case, and whatever you do with this Bill, you will not relieve the Home Secretary of that responsibility. In considering the exercise of the Prerogative he has to 859 take into account many matters, and often they are the most important, the most relevant and sometimes the most difficult matters, which it would be entirely outside the competence of any court to take into consideration, matters that have nothing to do with the guilt or innocence in law of the convicted person and are essentially not matters for a judicial authority. The Home Secretary, or rather the Secretary of State, has that responsibility upon him. We may hope that if these courts have to be set up, the number of capital sentences resulting may not be many—we hope so, we cannot be sure—but whether they be few or many it will be essential that the Secretary of State should put himself in a position to discharge adequately his responsibility in connection with the exercise of the Prerogative of mercy. He can summon to his aid all sorts of expert advice, and if it became absolutely necessary, his powers could be shared, and are in fact sometimes shared, with other Secretaries of State. That is a very relevant consideration.

The hon. Member for Camlachie suggested that the fact that we contemplate having to make Regulations, under which the death penalty could be imposed for offences which do not involve the death penalty under the ordinary law, was responsible for the chief trouble, and that if only we could make up our minds to do without those special provisions there would be no difficulty. But I would point out that among the cases which will come before these special tribunals, and they may be the most important cases, will be cases of murder. In those cases there is the death penalty and no other penalty. There can, I suggest, be no other penalty. So, we cannot escape from our difficulties in that way. Let me say a word about the suggestion for setting up some form of tribunal of a judicial character to undertake the review of these cases. I have said before that it would really be inconsistent with the purpose of this Bill, and would defeat the purpose of the Bill, if the simple procedure which we contemplate were to be complicated by providing a system of courts of review or courts of appeal or whatever you may like to call them. It seems to me that that would be a very difficult and a very unsatisfactory halfway house between these courts which are to be set up with the 860 full powers of the High Court, and the kind of administrative review in connection with the exercise of the Prerogative, which I have said, must be available anyhow. It does not seem to me, from such experience as I have had, that it can be satisfactory to ask judges to come together to exercise functions otherwise than in accordance with the forms and processes to which they are accustomed.

§ Mr. Bevan

It has been done in other cases.

§ Sir J. Anderson

The whole point of the suggestion was that there should be a system of judicial review, with the emphasis on the word "judicial." There is nothing to prevent the Home Secretary, in the exercise of his responsibility, from associating with himself persons learned in the law and persons otherwise competent to advise him by having a machinery by which he could refer difficult cases to persons who would be sitting, frankly, not as judges. If you ask people to discharge a judicial function, it is essential that you should enable them to do so in accordance with the normal processes and traditions of the judicial office. I have no hesitation in saying that it would be quite unsatisfactory from the point of view of the purpose of this Bill, to adopt that procedure.

§ Mr. Bevan

The right hon. Gentleman has made only one point in the whole of his speech. We have made a suggestion which goes 75 per cent. of the way to meet him, but he does not give any argument against it. All he says is that he considers it unsatisfactory. These courts themselves are half-way houses. They are mere excrescences on the judicial body. The right hon. Gentleman says that the tribunal which I am suggesting would be a half-way house. We are endeavouring to meet him, and there is no reason why there should not be a legal tribunal to review these cases. He has not given us a single reason. All he has said is that you cannot have a tribunal of judges, unless you have the normal processes of the law, but you do not have the normal processes the law in these special courts.

§ Sir J. Anderson

Yes, you do.

§ Mr. Bevan

No, you do not. The whole system has been mutilated by these special courts. Why does the right hon. 861 Gentleman not try to meet the Committee in this matter? He has not made out a case. He knows it is just nonsense to say that he can review these cases himself. Why does he not agree to attach to himself, in the discharge of his functions a permanent legal tribunal—permanent while this emergency is on—in the review of these cases?

§ Sir J. Anderson

I do not want to prolong the discussion, and I appreciate the contribution which the hon. Gentleman has made. I do not think that I should have any objection, in principle, to associating with myself—I had better say with the Home Secretary—in the discharge of these functions, and in the exercise of the Prerogative, a body of persons legally qualified and highly expert to advise, so far as legal considerations may be involved. The hon. Gentleman said that I had given no argument, but I would remind him that the considerations which have to be weighed are not by any means all legal. So far as there are legal considerations we might make provision by Regulation for a body which would give advice and assistance to the Home Secretary, but I should like to think out that suggestion. I have no objection whatever in principle. I tell the Committee straight away that I certainly have had it in mind that, if the volume of work falling on the Home Secretary was such that he could not adequately deal with this matter through the ordinary machinery available to him, some such expedient as has been suggested might have to be adopted. I have no objection.

§ Mr. Bevan

The right hon. Gentleman has said that he might do by Regulation, what he has told the Committee he could not do by legislation.

§ Mr. Levy (Elland)

I have listened to the Home Secretary and I say, with great respect and humility, that he has not convinced me. I think I shall be voicing the opinion of a good many hon. Members in saying that legislation by Regulation instead of by embodiment in a Bill, is something to which we all ought to take some objection. I am diametrically opposed to the arguments of the hon. Member who spoke about the British characteristic. Surely that characteristic is that justice shall be meted out in a just way. One man may have to hold power to impose sentence of life or death, probably in a 862 time of very great emotion. It is our duty, as Members of Parliament, to do what we are doing now, to discuss matters in a calm and collected fashion. The Home Secretary has endeavoured, to the best of his ability, to persuade Members of this Committee to his point of view. With great respect, I say that he has not succeeded, and I want to add my voice to those of hon. Members who have already supported the idea of a review, where the death sentence has been imposed. Whether that upsets the Bill or not, I cannot imagine anything of greater importance. A man can be detained. What is the hurry, if a man has committed an offence which, in a moment of crisis, seems to necessitate shooting him or hanging him forthwith? My own view is that this Committee ought to demand an answer. I hope that we shall defeat the Government, unless the Home Secretary is prepared to make this concession in the Bill now, and not by subsequent Regulation, that there shall be a review, should a sentence of death be passed by these courts.

§ Major Maxwell Fyfe (Liverpool, West Derby)

Having listened with the greatest interest to the different views expressed on this point, I express my own, which is known to certain Members of the Committee. Hon. Members have expressed a preference for another procedure rather than the one put forward in the Bill. In the last speech of the Home Secretary was a proposal which, if examined, will be found to go a great way to meet the fears exprssed in many quarters of the Committee. The hon. Member for Ebbw Vale (Mr. A. Bevan) said that he was not convinced by the argument of necessity which had been put forward. I disagree strongly with his view as to the absence of necessity of deterrent and speedy action. In the circumstances in which these courts are suggested, deterrent and speedy action is essential if they are to work at all. Therefore, we have to find a procedure which will not militate against those two requisites. As I understand the Home Secretary, he proposes that, in the case of a death penalty for a serious offence, no action shall be taken to carry out the sentence until he has referred the matter to, and had a report from, an advisory committee, which will consist of legal experts, and that that advisory committee should be able to review not only 863 the sentences, but the proceedings of the court, and questions of whether the conviction is right or not. If my right hon. Friend is going as far as that, I cannot see the distinction between his proposal and the suggestion of the hon. Member for Ebbw Vale that there should be a court of review.

§ Sir I. Albery

If what my hon. and gallant Friend has now stated as the Home Secretary's argument be, in fact, his argument, and if it means that the body which the right hon. Gentleman might set up would be a confirming body, it would go a long way towards meeting the point.

Hon. Members

He has not said that.

§ Major Fyfe

I hope that my right hon. Friend will not think that we are catechising him, but perhaps he will indicate whether I am right in describing the suggested body as a committee, to which he would refer these questions and whose report he would receive before action were taken.

§ Mr. E. Evans

That is very important. The Home Secretary has not said that yet.

§ Major Fyfe

I hope I am not pressing my right hon. Friend too much, but I ask him whether I have given a correct account of what he said.

§ Sir J. Anderson

What I said was that I was perfectly prepared to consider making provision in the Regulations for some appropriate and convenient method of reviewing, in connection with the exercise of the Prerogative, matters arising out of the working of the special machinery provided in the Bill. I have not had an opportunity of considering how best it could be arranged, and I do not want to be tied too closely, but I am perfectly prepared to go into that matter in connection with the Regulations. I told the Committee that I had had in mind that, if the pressure of work became such as to necessitate the setting up of a special machine, that would be the kind of machinery I would select. It is not a matter to be provided for in the Bill because, according to my suggestion, it would be bound up with the exercise of the Prerogative. You cannot put into the Bill matters of that kind. I think that would be entirely wrong constitutionally. My right hon. and learned 864 Friend the Attorney-General may speak in a moment about the establishment of a body of a judicial nature.

§ Mr. Pritt

Would not the right hon. Gentleman say that to deal with the Prerogative in a Regulation would be, if anything, slightly worse than to deal with it in the Bill?

§ Sir J. Anderson

I do not think it has quite the same consequences. In point of fact, the provisions which are made to ensure that the death sentence shall not be carried out, under the ordinary rules, before review has taken place, are made by rules.

§ Mr. Pritt

That is a different point. The right hon. Gentleman is proposing to supply by Regulation, someone to carry out the Prerogative.

§ Sir J. Anderson

No. I hope there is no misunderstanding on that point. The body to be set up will advise the Minister, who has to carry it out.

§ Major Fyfe

I confess I thought that my right hon. Friend had gone a little further, and that he was not limiting his suggestion to the one matter of Pr