§ Order for Second Reading read.
§ The Secretary of State for the Home Department (Mr. Herbert Morrison)
I beg to move, "That the Bill be now read a Second time."
The Bill before the House has come to us from another place, where it was passed through all its stages with speed, and the Government ask that the House will be so good to-day as to pass the Bill through all its stages here. The short and clear-cut purpose of the Bill is to provide that all criminal offences, on the part of members of the Armed Forces of the United States, shall be removed from the jurisdiction of the British courts. The matter arises in this way. The Government of the United States are, as the House knows, sending numbers of members of the Armed Forces of the United States to this country. As time goes on, those numbers will increase. It is the considered opinion of the Government of the United States that it is most expedient, and from their constitutional point of view is right, that any offences on the part of members of the American Armed Forces should be tried by their 877 own military courts and not by the British courts. The American authorities have pressed that point of view upon us with great vigour and earnestness;
There are a number of considerations which led the American authorities to that view, a view in which His Majesty's Government have concurred. One is that the American members of the American Armed Forces are, of course, accustomed to their own procedure and the principles of their own law, and although it is not dissimilar in principle from the law of the United Kingdom, nevertheless they will be more familiar in dealing with their own authorities in their own customary way. There is the further point, which is a very practical one and which is not unimportant from our own point of view, that if members of the American Armed Forces who were alleged to be guilty of a criminal offence were brought into the British courts by a British authority, the American authorities would feel that it was necessary for them to provide defence for their men in our courts, whereas if they can try them they will have a freer hand to see that the appropriate punishments are inflicted by their own volition. They have given us every assurance that the punishments in the case of their own military courts dealing with offenders would, taking it broadly, fee not less severe than if the cases were dealt with in British courts.
In short, the American view is that constitutionally it is desirable, and indeed necessary, that where their troops go American legal authority should go with them. We have felt that in all the circumstances the American claim was well based and that it ought to be conceded both from their point of view and, as a practical matter, from our own point of view as well. Moreover, even if we were disposed on the merits of the case to resist the claim of the Government of the United States, we should be in a rather poor debating position because we ourselves successfully made precisely the same claim in the case of the British Forces in France in the last war when our military courts were given a jurisdiction somewhat similar to that now being claimed by the Government of the United States. Therefore, His Majesty's Government have thought it right that the claim of the American authorities should be agreed to. We believe it is in the interests of good feeling between the two 878 countries, and particularly in the matter of good feeling between our own population and our own authorities and the American Forces; I know the whole House is glad to see them in our country and will do what it can to give them a cordial, pleasant and happy welcome.
The Allied Forces Act, 1940, enabled the Allied Governments generally to set up their own courts to deal with matters of discipline and internal administration within their Armed Forces, and therefore, as far as the internal discipline and administration of their own Armed Forces are concerned, it is already established by law in this country that the law of the Allies applies to them. All that this Bill does is to extend to the very considerable American Forces a similar position in relationship to criminal offences in this country. This, of course, is a matter of very great importance and a very substantial extension, the importance of which I do not wish in any way to under-estimate to the House. The present position is that there is a dual jurisdiction. At the moment the American Armed Forces, through their appropriate military courts and so on, have jurisdiction over those cases and so have the British courts of justice. What this Bill does is to oust the British courts of justice from jurisdiction in cases of criminal offences.
I have already stated the general reasons for bringing in this Bill, and I would only add this, that there is a large number of American troops in this country already and that number will increase as time goes on. It is the case that the fundamental principles of British law and United States law are not dissimilar. There are, of course, certain differences, but in fundamental principle the law of the United States and the law of this country march on much the same hues. As I have said, the penalties will, in our judgment and in the judgment of the American authorities, be clearly adequate, judged by British standards. I would like to add that the American Army and Naval authorities and the American diplomatic authorities have shown every willingness to co-operate with us and to be helpful in the discussions which have taken place. Accordingly, we anticipate no friction in the relationships between our own authorities and the American authorities, because the American authorities have been exceedingly helpful and co-operative 879 all the way through and we are perfectly confident that this will continue after this Bill is passed.
The main provisions of the Notes exchanged between the two Governments will be familiar to the House; they are, indeed, set out, because we thought it desirable that they should be so set out, as a Schedule to the Bill, and I think that they, in themselves, make perfectly plain the purpose of the Bill. The House may wish to be assured that any offence against our criminal law will be covered by the American military law. This law, which runs to a considerable number of articles on specific points, has an Article 96 which, I think, amply covers the miscellaneous sort of offence that might not otherwise be covered in specific articles of the American military law. I think that Article 96, which I will read to the House, picks up and covers all the kinds of miscellaneous criminal offences that we might think of. The Article reads:Though not mentioned in these Articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offences not capital of which persons subject to military law may be guilty, shall be taken cognisance of by a general or special or summary court martial according to the nature and degree of the offence, and punished at the discretion of such court.I think the House will agree that those terms are very wide indeed.
§ Mr. Morrison
They mean an offence short of the offence of murder, which presumably is covered somewhere else in the military law. Probably that is what is meant, but if I am not right in saying that, my right hon. and learned Friend the Attorney-General will be able to deal with the matter later. The terms I have read out are very wide and general, and I think they are likely to pick up all the range of criminal offences known to our law. Indeed, such an assurance has been given to us by the American authorities, who believe there is no need for apprehension on that point. Generally speaking, their penalties are as severe as ours, and, indeed, in some cases their penalties are more severe. There is a provision for 880 the waiver of the exclusive American jurisdiction in particular cases. It might be the case that there was an offence in a distant part of the United Kingdom where it would be needlessly troublesome for the American authorities to send a court-martial and where they themselves might make representations to us that it would be more convenient in this isolated and distant case for the British courts to take it, and on those representations being received a Secretary of State may make an order that the British court can take that case. It is probable that the Secretary of State in this instance would be my right hon. Friend the Foreign Secretary, but the order can lawfully be made by any Secretary of State.
That provision is thought to be convenient and appropriate to deal with these exceptional cases. It does not follow from that that the British authorities are bound to proceed with the prosecution. If our Director of Public Prosecutions or the police thought that a case would not stand up to court proceedings they would have discretion as to whether to proceed or not. The proceedings, so far as the American authorities are concerned will be in open court unless security considerations require otherwise. Of course, that obtains in our own courts as well. Generally speaking, proceedings will be taken in open court. The American authorities have assured us that they will be prompt in taking proceedings, and will do their best to see to it that the proceedings are heard as near as possible to the place of the alleged crime.
§ Earl Winterton (Horsham and Worthing)
Before the right hon. Gentleman leaves that point, would he deal with this question What happens if there is a joint criminal charge; for instance, if there is a black-marketing case against two American soldiers and two British subjects?
§ Mr. Morrison
If it is not quite clear as to where a case should go, there will be discussions between the American and our own authorities, and we will mutually agree about it. That seems to be the only way in which these borderline cases can be sorted out. It is part of the Agreement between the two Governments that alleged offences which occurred before 7th December, 1941, will not come within the operation of this Measure. That date, 881 of course, is the date of the American entry into the war. It was thought there should be that limit in time.
The question has been raised by the Government, as we felt that the House would wish us to do, as to reciprocity on the American side. It is the case that circumstances are very different on the other side, for there are few British troops in the United States. Therefore as a practical issue it hardly arises. But our American friends have agreed that if and when it becomes a practical issue the American Government will do all they can to see that appropriate reciprocity is given to us in a similar way. There is machinery existing, which will be developed, for co-operation between ourselves and the American military authorities. Finally, it is intended that the Agreement shall remain in force until six months after the restoration of a state of peace, unless mutual agreement is otherwise reached at the time.
As to the Bill itself, the main provisions are clear, I think, on the face of them. The Bill recites the Notes and incorporates them as a Schedule to the Bill. Clause 1, Sub-section (1), provides that no criminal proceedings shall be prosecuted in the United Kingdom before any court of the United Kingdom against a member of the military or naval forces of the United States of America, subject to the proviso to which I have referred. Clause 1, Sub-section (2), makes it clear that the police powers of arrest, search, entry or custody are not affected by the Bill; they continue. Provision is made for establishing machinery for handing over offenders to the United States authorities to be dealt with by the United States Service Tribunals. A similar agreement in principle has been reached and is being implemented, I understand, in the Commonwealth of Australia and the Dominion of New Zealand. The only other point I would mention is that civil proceedings are in no way affected by this Bill, which is solely directed to criminal offences. I think I have covered the broad grounds of the purpose of the Bill. His Majesty's Government take the view that the American authorities have made a not unreasonable claim, a claim in fact which we successfully made in the case of the British army in France in the last war. We think, as the House will agree, that it is of the utmost importance that there should be smooth and friendly co- 882 operation between ourselves and the American military and naval Forces. We are assured that there will be every helpfulness and co-operation on the part of our American friends, which help and cooperation we wish on our side to give. In all the circumstances I hope that the House will be good enough to give us the Bill through all its stages to-day.
§ Mr. Riley (Dewsbury)
Would my right hon. Friend make clear one point which was not quite clear to me—his reference to capital criminal offences? Will he tell us whether, in the event of a member of the military or naval Forces of the United States committing a criminal offence resulting in the death of a British national, the American offender will be subject to American jurisdiction or British?
§ Mr. Morrison
In the case of a capital offence, he will be subject to the American authorities. They will deal with him. My right hon. and learned Friend the Attorney-General tells me that we are not quite clear—this is, of course,. American military law—why that particular word occurs in the Article I have quoted. We rather assume it is because a capital offence is specifically dealt with in another Article, and probably the American authorities desired to make it clear that the Article to which I have referred did not apply to capital offences. It is undoubtedly the case, in the instance of a capital offence charged against a member of the American Armed Forces, that the American authorities would deal with the offence.
§ Mr. Silverman
Would there not be this difference—that the American soldier in the case to which the right hon. Gentleman refers would be triable only by a military court, whereas a British soldier committed on a like offence would be subjected to civil and not military courts?
§ Mr. Morrison
I think that is so, and it really must be so, because there is none other than an American military court in this country to try the case.
§ Mr. Garro Jones (Aberdeen, North)
The House will have observed that this Bill has been introduced by the Home Secretary, not by the Attorney-General, and from that I think it would be quite fair to deduce that it has been inspired at least as much by what I will not term political considerations, but considerations 883 of the relationship between our two countries, as on purely legal grounds. I think every hon. Member will wish, in discussing this Bill, to exclude all legal pedantry. At the same time I think it is rather misleading to suggest that this Bill follows the analogy of what was done in France in the last war. There the British troops were engaged on active combatant service in zones which, with certain exceptions, were forbidden to civilian access, and although there was a certain number of British troops mingling with the French population, the degree of contact with the French civil population, as many hon. Members will recollect, was nothing like the degree of contact which the American Forces must inevitably have with the British population here. When this Bill becomes law it may well give rise to some difficulties, but these difficulties will be all the less if we understand quite clearly what we are doing to-day.
It is said that what will be administered is the American criminal law, and some code appears to have been published, of which the House is not properly informed. I am not proposing to oppose this Bill, but I wish to clear up some important points. When we consider American criminal law, we are in some difficulty. We want to know whether we are dealing with the American Federal criminal law or with the State criminal law, and which is the foundation of this military code. It will certainly be necessary to apprise the public as to what code is to cover this law. In every State of America they have a different criminal law, with certain Federal criminal laws superimposed over all. In some States, I believe, capital punishment has been abolished, and in others its mode of execution is altogether different: in some it is by hanging, in others by electrocution, and in at least one the lethal chamber is the method. We do not want to get morbid about the consideration of this Bill, but it is important that we should know the code which is to be administered. It is true that, despite all these differences, the American criminal law and our own come from a common source the English common law and statute law as they were at the time when the American Colonies were founded. But the law of a living community constantly changes, by amendment, repeal and decay and by the divergent case law 884 of the country concerned. Perhaps that is not altogether a good thing, because if the law were still as it was at the time of the common foundation of our two criminal laws it would be possible to sentence culprits to the ducking-stool. It is only about 120 years since that penalty was abolished from our own criminal law; and, not so very much farther back, it was possible to sentence a culprit to lose his ears—a sentence which was passed and executed upon a Member of this House.
But we are not considering the common source of the two laws, but the extent to which they have developed on parallel lines during the last 160 years. I do not intend to set myself up as an expert on American criminal law, but I have consulted colleagues of mine in the profession on that subject, and happily there is very little reason to anticipate any awkward disparity that need hamper the passage of this Bill or impede its operation. But it is important that we should recognise the divergencies which exist. There are one or two very important ones. On the law of treason—which, of course, we do not anticipate will arise, but for which we must make provision—the American crime is a very much narrower one than the British. I believe it is entirely restricted to levying war against the State or adhering to its enemies. The fact that the United States law itself is not quite clear on this question may be deduced by those who have read what difficulties it has landed itself in in the last few days oh the trial of eight German saboteurs who have landed in the United States. If I have read the reports of the proceedings aright, the President set up an ad hoc military commission to try them, and his decision so to do was challenged in the civil courts, in order to establish the jurisdiction of that tribunal. I think that on important questions of that kind, in the interests of the United States Army no less than in the interests of the British Army, we should be quite clear that we are not landing ourselves in any difficulties of procedure.
There are other difficulties which are more likely to be disclosed as the Bill comes to be administered. Although, as the right hon. Gentleman the Home Secretary said, they will be to some extent covered by what might be called the residuary provision of the military code—that is to say, "conduct prejudicial to military discipline" and so on—it would 885 be interesting to know to what extent offences which do not come under that residuary provision are defined in the code. I want to ask the learned Attorney-General whether it will be possible for members of the legal profession, at least, or for members of the public who are interested, to have convenient access to this military code at an early date. I feel certain it would be wrong to convey the impression that only minor offences will be dealt with under that residuary provision. It is quite likely that under that very vague provision for "conduct prejudicial to military discipline" several quite serious offences may fall.
I observed in "The Times" yesterday that a learned Judge, a Lord of Appeal in Ordinary, drew attention to some of his anxieties. Most of his doubts, I think, might have been dispelled by a fuller study of what was said by the Lord Chancellor in another place. But the learned Judge was rightly concerned to satisfy himself that the class of offences known to lawyers as offences against the person—which, of course, include offences against women and children—will be as stringently dealt with in the American courts as they would be in the civil courts of this country. I am glad to be able to say that, as far as my investigations go, there need be no anxiety on that score. The standard of proof will be the same, the rules of evidence will be similar and the punishments in many cases are even more severe in the American code than in the British code, the American code having been founded on several co-ordinated State codes, in one of which at least the crime of rape is punishable by death. Although we regard rape as a serious crime, punishable by extreme sentences of imprisonment, it certainly is not liable to a capital penalty. I think that the overwhelming majority of cases which will fall to be administered under this Bill will come within the category of offences liable to be tried by process of summary jurisdiction. Fortunately, that is precisely the class of offences in relation to which the American criminal code and our own have most in common. I feel that as to 99 out of 100 cases no difficulties of that kind will arise, but, having said this, I hope that the American and the British authorities will make provision for settling any differences that arise. I notice in 886 page 5 of the Bill, paragraph 8 of the Schedule, that the whole arrangementis based upon the further assumption that satisfactory machinery will be devised between the competent American and British authorities for such mutual assistance as may be required in making investigations and collecting evidence in respect of offences which members of the United States Forces are alleged to have committed.With great respect, I do not think that that machinery, with that limited purpose, will be sufficient to ensure the satisfactory administration of the Act. Many different kinds of questions will arise. In reading the Lord Chancellor's speech, I saw that he promised, or at any rate anticipated, that some supplementary machinery might be necessary, and I hope that before the House passes this Bill it will be informed precisely what the nature of that supplementary machinery is to be. I would respectfully suggest that a tribunal of referees, presided over by the Lord Chancellor and consisting of an American lawyer and an American soldier, and perhaps a similar representation on the British side, would be a satisfactory body. The Lord Chancellor should preside over such a body, because although we are doing this to meet the desire of the United States authorities, it is the protection of our own nationals which is being confided to their criminal jurisdiction, and therefore it is important that we should maintain a close surveillance over the method of operation. At such a tribunal, apart from questions of law, as the learned Attorney-General will know, perhaps one of the most difficult questions will be the difference in the law as regards states of the mind, which in United States criminal law is very different from that in this country, and that will be one of the questions which will give rise to difficulties. On the protection of witnesses in contempt of court, if that should arise—it may never arise, and we hope that it will not—it will be an extremely awkward question if there is no body of authoritative people able to decide it and come to a wise decision. On the right of appeal, if any, to the American Supreme Court, is the American Appeal Court to be the final court? I anticipate that it will be and that there will be no appeal to an American Civil Appeal Court.
There is the question of the privilege of witnesses and of the Press. That is not 887 dealt with in this Bill. Are we sure that witnesses will be fully protected by the law of privilege as applied to witnesses in the British courts, and similarly to reports of these, cases in the Press? These military courts will not be British courts of law, and as the law stands, if I understand it aright, there would be no protection to a British newspaper for printing a report of these proceedings; it would be liable to an action. I see that it was stated in another place that it would have the same protection as is accorded in respect to honest reports of public meetings, but I am sure that my right hon. and learned Friend will not contend that that will be a sufficient privilege for witnesses in a court of law. There is one further point about which I would like to ask. Is any initiative in the laying of charges left with the American authorities, or is the whole process of initiating action to arise from the British civilian population through the channels of the British police?
I have left one point to the last, which I think is a very important one, on which I wish my right hon. and learned Friend particularly to give me an answer. What is the position of British lawyers before these American courts? Is there to be any right of audience by an English solicitor or an English counsel, and, if not, would it not be desirable that, at any rate, it should be possible for right of audience to be given in cases of certain classes of offences, and offences against the person in particular? Very delicate and difficult matters are concerned, and I think it would be a pity, on what consideration I have been able to give to this matter, if legal advisers of persons who have been wronged were to be excluded from the tribunals which are to try the wrongdoer. There may be some good reason why that cannot be given, but I hope that it will be fully considered.
I put forward these points, not as criticisms, but rather as points complementary to the proposals before the House. The British people, if they are properly informed, will not be apprehensive about this Bill. They are confident that the cases which will arise under it, if carried through their usual channel of complaint, namely, the British police, to the American courts will be adjudicated upon a code as enlightened as our own. As for the British Judges, I entirely agree with what has been said that many of 888 them will be only too glad to be relieved of the rather embarrassing task—and this applies particularly to magistrates—of trying members of an Allied Force who are in this country as our friends and helpers, but I hope that our American Allies will not under-estimate the importance of this Bill and will recognise in it not only an earnest of our comradeship, but a revelation of common sense between the two countries.
§ Mr. Goldie (Warrington)
When the Leader of the House on Thursday of last week informed us that it would be necessary to pass through all its stages in one day a Bill which involved considerable constitutional changes, I felt great anxiety about what I should discover when the copy of the Bill came from the Vote Office. That anxiety was to a very great extent, if not almost entirely, dispelled when I saw that the Bill which was to be presented to this House bore the imprimatur of the Lord Chancellor and is recommended by the Leader of this House, a distinguished lawyer, the regret at whose departure from the Temple is only tempered by the extreme affection that he left behind. But I feel that, dealing as we are with a great constitutional change, which is wholly without precedent, we are, particularly in these times of emergency, the High Court of Parliament, and in particular, in this House we are the protectors of the liberty of the subject. In these circumstances we should be failing in our duty, and indeed in our duty to our comrades in the American House of Representatives, if we did not devote some little care to the examination of a Bill which carries out an agreement by which we are absolutely and honourably bound. I have no doubt whatever that this House will give approval to the Agreement come to between His Majesty's Secretary of State for Foreign Affairs and His Excellency the American Ambassador, and, indeed, it is unthinkable that we should not honour such an Agreement, but it undoubtedly involves a great constitutional change, and, further than that, it is, in my experience, unique.
In all the years I have been here I can never remember a Government coming to the House of Commons with an actually concluded Agreement. I hesitate to recall the Hoare-Laval Agreement of unhappy memories, because that never reached the stage at which legisla- 889 tion came before the House. The only Bill which, in my recollection, is now an Act and is in any way analogous to it, is the Statute of Westminster, passed in 1931. But that Statute was a totally different matter altogether, because what happened in that case was that the Crown delegated its particular powers of dealing with British subjects to courts in our great Dominions. But here we are undoubtedly making a great constitutional change and one to which, I suggest, we should devote a few minutes to examining. In this case there is no doubt at all that from the point of view of everybody it is desirable that American courts should have jurisdiction. But I ask myself whether or not we are perhaps proceeding in a wise way. I cannot recollect any Bill in which an Agreement which is come to is set out as the Schedule to the Bill. I at once referred to the opening paragraphs of the Preamble of the Bill, and I found reference to the Allied Forces Act, 1940, and the Order in Council made thereunder. If that is so, it does seem to me that we might well have proceeded—and I speak with great respect in the presence of the Attorney-General—in bringing about what we desire under the Allied Forces Act, 1940. The Preamble of that Act and the Order in Council which is based upon itmake provision with respect to the discipline and internal administration of certain allied and associated Forces, and for the application in relation to those forces of the Visiting Forces (British Commonwealth) Act, 1933, and other Acts.Later we passed the Allied Powers (Maritime Courts) Act, 1941, the Preamble of which deals with the making of temporary provisions to enable Allied and associated Powers to establish and maintain in the United Kingdom maritime courts for the trial and punishment of certain maritime offences. In both those Acts there are definite Sections preserving the rights of the British courts. In the earlier Act hon. Members will find that it states in Section 2:(1) Nothing in the foregoing section shall affect the jurisdiction of any civil court of the United Kingdom or of any colony or territory to which that section is extended, to try a member of any of the naval, military or air forces mentioned in that section for any act or omission constituting an offence against the law of the United Kingdom, or of that colony or territory, as the case may be.Similarly, under the Maritime Court Act, which the hon Gentleman the Member for 890 Nelson and Colne (Mr. Silverman) and I criticised from rather different angles, there is in Section 3 the definite proviso:Nothing in this Act shall deprive any British court of jurisdiction in respect of any Act or omission constituting an offence against the law of any part of His Majesty's Dominions.When you look at the Order in Council made under the Allied Forces Act you find there that the exact provisions of this Act are applied by the Order in Council to a certain number of Allied Forces. I, for one, feel we might well have proceeded under the 1940 Act and preserved to ourselves some right in these cases for British courts. That being so, I do not intend in the slightest degree to criticise the Agreement which has been come to; indeed, it would be almost impertinent to do so, and, therefore, any remarks I make will be made in order to try and elucidate points which are not clear. If you turn to the Schedule, you will see there is reference continuously to the Service Courts, as, for instance, in line 13 of page 5 and line 13 of page 4. That is, in fact, a phrase which is taken from the Order in Council under the Allied Forces Act, 1940. But I find that when I look at the Bill itself there is no particular definition of any Service Court, and I ask myself whether these proceedings are to be confined solely to courts-martial held under the aegis of the American Forces, or is power to be given—as was undoubtedly given under the Maritime Courts Act—to create lesser courts and courts other than courts-martial to try lesser offences? It is a point which I think should be made clear because it is extraordinarily difficult to tell under the Bill what court is contemplated.
There is another point to which I should like to draw attention. Reciprocity is dealt with. Is it proposed that there should be an extension of this Measure to the Dominions? I think some question may well arise of what may happen in the Dominions, Another point is that in the Act of 1940, and certainly in Section 19 of the Act of 1941—the Maritime Courts Act—there is direct reference to Northern Ireland. In this particular Bill it is a rather extraordinary and rather unusual feature that one sees there is no Clause extending the Act either to Scotland or to Northern Ireland. Yet we find in Subsection (2) of Clause 1, in line 15, references made to the Minister for Home 891 Affairs in Northern Ireland. It is just as well we should understand why the Measure apparently does not extend to Northern Ireland while there is some reference to the Minister for Home Affairs in Northern Ireland. The next Subsection which is obvious and a very proper one and which it would not be wise for a moment to criticise at all, says:Nothing in this Act shall render any person subject to any liability whether civil or criminal in respect of anything done by him to any member of the said forces in good faith and without knowledge that he was a member of those forces.That is essential and most desirable to prevent actions for false imprisonment, malicious prosecution or anything not done in good faith. But when I read the Sub-section I put upon it such a ludicrous interpretation that I felt there must be something wrong somewhere. I said to myself:…any person subject to any liability whether civil or criminal in respect of anything done by him to any member of the said forces in good faith and without knowledge that he was a member of those forces.It might well be that when we are visiting our constituencies we might collide, while cycling, with a member of the American Forces. Apparently he would have no remedy against us at all. I know that is not what is meant, but the fact that it is possible that a man with some little legal knowledge might place that interpretation upon it in a moment of mental aberration shows that it might be differently worded. It would just clear up what is, in fact, an obvious point.
I have detained the House far too long, but this is a great constitutional change, and we cannot get away from it. We are doing something which, in words which have already been used, constitutes a most unusual proposal, and one which would never be justified or tolerated except under conditions of war and under conditions of the closest feeling of comradeship, and of a common legal tradition, which exist between the United States and ourselves. In my view this Bill carries us far, and I myself apply one test only in these matters. Does exceptional legislation of this character assist us in our war effort? In our opinion it does, and it is perfectly clear that it does because our Allies the United States of America are so desirous of having the facilities it gives. The only 892 other point is, if such legislation is necessary in exceptional circumstances, does that in any way prejudice the right of the individual citizen, be he a British subject, an ally, or even a friendly alien? In this particular case we are told by the United States of America that they desire this particular procedure, which in their view will help them in dealing with the rights and liabilities of their own citizens who are helping us in the Forces. If they have asked for it, I for one am content with this Bill. Except for such little criticism as has been made of the Bill, which may perhaps be made better in some of these smaller items, I for one commend it to the acceptance of the House.
§ Mr. Clement Davies (Montgomery)
My hon. and learned Friend, towards the end of his speech, has very rightly laid emphasis on the great constitutional change that we are asked to make. He did not content himself with using his own words, but referred to the words in the letter of the Foreign Secretary; yet, having attracted the attention of the House to that in an earlier part of his speech, he said it would almost be an impertinence on his part to criticise the action of the Executive. That just shows the pass to which this House is rapidly reducing itself, that Members should apologise for daring to criticise a constitutional act proposed by the Executive. Does the hon. and learned Member, who belongs to what is to my mind the highest of all professions, really think that it is an impertinence on the part of a member of the Bar to criticise an Act which is going to do away with the jurisdiction exercised from time immemorial by the courts of this country?
§ Mr. Goldie
I do not think I used the words "impertinence to criticise the Act." What I think I said was that it would be "impertinent to criticise the Agreement"; there is a slight distinction.
§ Mr. Davies
It amounts to exactly the same thing. This Legislature is ancient, and we are proud of it; we are proud of the way in which we exercise our democratic rights, but far older than the Legislature is our method of administering justice, and we are even prouder of that The Judges on our benches, whatever the Legislature or the Executive may have thought, have been the bulwark of our democracy. They have stood against 893 kings in the past, they have stood against the Executive, and upon our benches and their administration of justice our very liberties are founded.
With some of the words which were uttered by the Home Secretary every one of us will agree; we welcome the American Forces here, and we are anxious to assist them and to express our gratitude in every way we can, but while agreeing with that, it does not follow that we are to hand over, not even to the American civil courts but to the American military courts, the civil jurisdiction usually exercised by our Judges. It is not only the jurisdiction exercised by the magistrate, whether in petty sessions or in quarter sessions, but that jurisdiction that was so treasured that we have long decided that it was not a matter for the magistrates or quarter sessions to deal with, but was one which could only be dealt with by our specially qualified and highly paid High Court Judges. We are not even to hand over that jurisdiction to similar Judges, but to some military court about which we know nothing.
I therefore make three protests, and may I make the smallest one first? I protest at the way in which this matter, one which the Home Secretary and the Foreign Secretary, as well as the two hon. Members whose speeches we have just heard, regard as a highly constitutional matter, is brought before the House, to be rushed through all its stages in one sitting. We have not even been given a copy of our own Bill, but we are given a copy of a Bill in another place, with a white slip attached to it. We are not even told who is introducing this Bill. We are only told who was introducing it in another place. I agree that that is done for the convenience of the House, and we are grateful for that, but it does show the way in which the Legislature to-day is being treated by the Executive. It is no good pointing to the two letters, the long letter from the Foreign Secretary to His Excellency the American Ambassador, and the latter's reply on the same day—they are both dated 27th July; these matters must have been under discussion for a very long time. We now know that it is proposed, although it is not stated in the Bill, that this is to be ante-dated even to 7th December, 1941, and that offences which have taken place since that date are now to be dealt with not by our courts but by this military court. Why is the House 894 treated in this way? Why is the Bill rushed through almost on the last day of the Session, when we are supposed to be adjourning for a whole month? Why could not the House have been given a longer period in which to discuss it? That is my first protest.
My second protest is that it is brought before the House as a fait accompli, and I think that that was what was really in the mind of my hon. and learned Friend, that if this matter had been brought up in the first instance before this House without an Agreement having been made, his criticism to-day would have been a stronger one. But he says, "Who am I now to make a protest about this matter? It has been agreed between our two Governments, and I can only look at it as an accomplished fact and draw the attention of the Government to a few matters." I protest against that. If they had this in mind, as they must have had it in mind for a very long time, why did they not bring it before the House and ask the opinion of the House before they made the Agreement, long before it was decided that we should do away with this jurisdiction?
My third protest is against the thing itself. Power has already been given by the Legislature to enable the Forces that have come to this country, who are our welcome guests and who have come here to assist us, to deal with their own affairs, and if further power were necessary, this House would readily give it. If any trouble arises with regard to discipline, if any dispute arises between two soldiers belonging to an Allied nation, that of course is a matter in regard to which we will say, "You can deal with it yourselves, we do not want to exercise any jurisdiction, we will take away from our, own courts the right to deal with them." But it goes further; it does not even deal only with military offences, but with offences against civilians in this country.
§ Mr. Davies
Most certainly. The noble Lord can put it the other way if he likes. We are reducing ourselves to the position in which certain countries were put by us under the Capitulation Treaties.
§ Mr. Silverman
Surely we are not even in such a good position, because under 895 the worst of those Treaties the courts which exercised jurisdiction at least were civil courts?
§ Mr. Davies
What we are doing is to deprive ourselves of the ancient jurisdiction of which we are so proud, and to hand it over to courts functioning, not in a foreign country, but in our own country. The precedent put forward is that this was done by France. But it was done only when the German invader had occupied a large part of her territory, when the French courts of civil jurisdiction were unable to function, and when there was only the French military jurisdiction operating. Very rightly, they said, "You deal with your own cases, and we will deal with ours." That was an entirely different situation from that which exists in this country. I also wish to show that the Bill in the form in which it has been introduced is of a negative character. It states:(1) Subject as hereinafter provided, no criminal proceedings shall be prosecuted in the United Kingdom before any court of the United Kingdom against a member of the military or naval forces of the United States of America.That is all. There is nothing there to say specifically that jurisdiction shall be exercised over these people by anyone else. It merely deprives our courts of jurisdiction. Having said that there is a precedent in France, the only other point emphasised by the Home Secretary was that the penalties these people would administer would be as severe as those administered in our courts. What the penalty may be is a small matter. What is important is, What is the jurisdiction, how it is exercised and under what rules it is exercised. The penalty may be more severe if a case is proved, but how is a case to be proved? A case will be taken in some court about which we are entirely ignorant. I wonder whether hon. Members realise the position. An American soldier or sailor commits an offence—I am not saying he is alleged to have committed an offence—and he is caught in flagrante delicto by a British policeman. The British policeman has power of arrest, but, having made an arrest, he and the American soldier or sailor know that an arrested man has to be handed over to a jurisdiction about which the policeman knows nothing. The policeman in ordinary times is part of the 896 whole system of law, from the Lord Chancellor downwards. Policemen have very great difficulties in effecting arrests, and very often they run great risks. Will they not be running even greater risks, when the persons whom they may try to arrest can say, "Although you can arrest me, your court has no jurisdiction whatsoever over me"? Think of the trouble which will arise.
My hon. Friend the Member for North Aberdeen (Mr. Garro Jones) rightly pointed out that, although the two laws originated in the same way, there have since been great divergencies. Possibly the cases which will have to be dealt with will be mostly those known as sex offences. We have built up in this country a very wonderful code of law to deal with sex offences. There are offences which are difficult to prove, and we have decided that the consent of the girl is no defence. I wonder what the law of America is with regard to that. We have been gradually changing the law in this country during the last 25 or 30 years, and we have raised the age during these years at which consent can be used as a defence. Which law will be applied if an offence is committed by an American soldier or sailor in this country? I gather it will be the American law—the American military law and not our British law. Then there is the case of a joint offence committed, perhaps, by a British soldier and an American soldier, and involving the death of a British citizen. How is the jurisdiction to be exercised there? Is the British soldier to be tried by a British court and the American soldier by an American court? Quite obviously these questions have not been fully considered. I am mentioning them to show how this matter has been rushed upon us; it was held up until the last days of July, when the Foreign Secretary wrote a letter and received a reply on the same day; it was then brought before another place, and now this Bill is brought before us to pass through all its stages in one day. I have made my protest as earnestly and as strongly as I can in regard to these matters.
§ Rear-Admiral Beamish (Lewes)
There are a few things which are troubling me about this astonishing and unique Bill, but anything I say is in no sense to be construed as being contrary to the people of the United States. I realise that if it 897 had not been for the United States, we should have found ourselves in very grave difficulties indeed; we all owe them an immense debt. There are one or two questions which spring to my mind, not a legal mind, but a mind with some knowledge of naval law and naval discipline, and with some knowledge of military law and military discipline. I do hope that the questions I put forward will not be misunderstood. My first question is why a similar procedure was not followed by other Allies who have Armed Forces in this country. Why, if it were not necessary for this law to be passed during the last war when we had immense numbers of American troops in this country, is it necessary in this war?
I have read through the correspondence in the Schedule, and I should like to ask that the previous transactions referred to in the opening lines of the Foreign Secretary's letter to the American Ambassador should be placed in our possession. Our letter, which I have read with great care, reads in the nature of a mild, justifiable and polite protest, with evident fears for possible difficulties that may arise. The 10-line reply of the American Ambassador reads like the last remarks of a polite ultimatum which has already been delivered. I put it in the politest possible words that the House of Commons exists for people to say what they think, and so long as it is not what I should call rude and unfair, one has every right to put forward such a view, but that is how it strikes me in reading it.
There is another point that distresses me. It is common knowledge—I have picked up a great deal of such information myself in reading the Press for a great many years past—that some legal processes in the United States last for many years before decisions are reached, and that is looked upon by the best opinion there as being in the nature of a scandal. In fact, the best opinion in America is filled with admiration at the high standard of our legal procedure, of the certainty of quick decisions which we always reach and the impossibility of unnecessary and unscrupulous juridical delays. I want to know what are the rights of appeal in American military law which might enable a man, after sentence is passed, to set in train all sorts of delays which may run into months, perhaps even years. Unless there is some sort of protection in that respect, people in this 898 country might become very angry if serious offences were committed against property or person which resulted in such delay as I speak of. I put those few points as they strike me, and I ask the Government to clear up the doubts that I have in my mind. I would not for a moment suggest that the Bill should be delayed or that I would vote against it, and, although I very much agree with what has been said about the way in which it has been rushed, we have a duty to perform, and that is to promote the interests of the United States and ourselves in the prosecution of the war. I just ask for information.
§ Dr. Russell Thomas (Southampton)
I completely agree with the attitude taken by the hon. and learned Gentleman the Member for Montgomery (Mr. C. Davies). The Bill is to be rushed through the House, but a great deal of negotiation must have taken place before the letters contained in the Schedule were written. We are removing these matters from our jurisdiction, and we are doing it very sharply, and I think it is only right that we should dwell upon it for a little time. The Home Secretary gave as the reason for the introduction of the Bill that the American Government would be happier if American troops were tried by the procedure to which they were accustomed, and he gave us to understand that that would be quite a natural desire on the part of foreigners—in this case Allies—who come to this country. He also said we should be met with the difficulty of providing defence for these men. But they would be in no other position than that of the ordinary person who normally lies outside our jurisdiction. I do not think that is any reason at all. If the accused person were in this country in an ordinary way he would be always faced with that difficulty. As to defence, surely the American Government could very easily make arrangements for American counsel to be available. The right hon. Gentleman's reasons seem to me quite beside the point. He referred to the Allied Forces Bill as a precedent. That Bill simply deals with offences against regulations laid down by Allied Governments in this country in regard to those serving under them. It does not visualise acts against our own people, and I do not think it can be in any way looked upon as a guide. Some newspapers have urged that there is, as it were, nothing in this Bill, that the language of the two 899 countries is similar and that their law is derived from a common stock. There are no reasons why the Bill should be passed. They are arguments against it. If our language is similar and our law comes from a common stock, what is the need then for a Bill of this kind?
It has been asserted that the magistrates and judges will be well content, that they will have less work to do and that they will be relieved of delicate matters which might come in front of them, and therefore they will be quite happy to allow an American military court to exercise jurisdiction. I do not think it is a question whether the magistrates and judges will be well content. What we have to consider is whether British citizens will be well content. Imagine that I have a wife or a daughter who has been murdered by an American soldier. Should I be well content to feel that he was not tried by a court of my own country? I do not think I should. We have already dwelt on the point of view that the punishment may be different from our own, and also that the American attitude towards crime in certain cases may also be different from our own. I would like to say something about the type of court which is to be set up. We understand that it will be a military court. I do not think that is satisfactory. We are accustomed to have a criminal tried by a jury in serious cases. There will be no jury in a military court. The court will consist of American citizens acting as soldiers for the time being, but there will be no trial by jury which we have regarded as so essential in this country over so long a period.
There is another point in regard to power to enforce United States citizens who may be here as soldiers to act as witnesses in cases of crime committed in their presence or in cases where it may be necessary for them to be witnesses. The Secretary of State for Foreign Affairs simply says that he trusts that we may count upon the assistance of the American authorities in connection with prosecutions before British courts of persons who are not members of the United States Forces where the evidence of any members is required or the assistance of American authorities in the investigation of cases may be needed. The Foreign Secretary merely trusts that the American authorities will allow these people to 900 be brought as witnesses. That is not sufficient and there should be a better understanding than that. There should be a Clause in the Bill stating that the reciprocity which is hinted at in the Schedule should be arranged by the American Government and that this Bill should not be effective until the American Government has made the same thing effective as regards British troops in America. The American Ambassador made a very short reply in his letter to the Foreign Secretary. He sets out clearly in the first paragraph of his letter what the United States Government desire, but he dismisses in two or three lines the other implications of the Foreign Secretary's letter. He says nothing there about reciprocity except in general terms. He says:I now have the honour to inform you that my Government agree to the several understandings which were raised in your Note.The American Ambassador should have set out specifically the desire of our country to have reciprocity as he has set out the desire of the American Government to have this jurisdiction within this country. He has not done so and speaks of "several understandings." "Understanding" may be a word which diplomatic circles understand, but to the ordinary man it is hardly sufficient. What the American Ambassador understands may not be what was in the mind of the Foreign Secretary. I do not suggest that that is intentional, but ambiguity might arise. He should have set out the paragraph about reciprocity in full.
Reference has been made to the legislation which affected our troops in France in the last war. It has been given out as a sort of precedent, although it is not a precedent at all. One hon. Member clearly pointed out that the conditions were very different, and I would like to emphasise that. From the start of the last war we sent out an enormous number of troops to France and they increased continuously until they soon reached 1,000,000. The French law did not run where the Germans were in occupation and round the fringe of the occupation there was complete confusion. The line was advancing and retreating and no one knew where they were. Large numbers of French citizens disappeared far behind the British line and it was natural that criminal jurisdiction under these conditions should be granted to the British 901 authorities in France. I would point out, too, that the French law does not come from the common stock about which we have heard to-day. Although I do not suppose I shall ever know, I would like to ask what the American Government had in mind in seeking these powers. British justice is notorious throughout the world as the best form of justice. It is not perfect, but no one could administer justice in a perfect way. Nevertheless, foreign countries have always recognised that our administration of justice is of the highest order. In Admiralty disputes foreign countries have constantly brought their cases to the British Admiralty Court because they knew that they were likely to get a better decision there than in the courts of their own countries.
As the common origin of our law and language is stressed, it would have been a great exhibition of mutual trust if the American Government had found it unnecessary to ask the British Parliament for this Bill. I do not want any remarks that I have made to be misconstrued by the House or in any place that they may reach. In this common struggle we shall, if we place our misunderstandings and difficulties upon the table and thrash them out, develop a greater faith and trust in one another. I have deplored before, and I take this opportunity of doing so again, the somewhat too tactful attitude that this country has taken towards the American people. We always undertake our negotiations with extreme delicacy. I believe that that might defeat its own object and that it will arouse the very suspicions we hope to avoid. Hence I hope that what I have said will not hinder our good relations because I believe that if we boldly face our misunderstandings and difficulties and discuss them quite frankly and openly as friends and Allies, we shall all be in better heart and better fettle to march forward together to the common goal of final victory.
§ Major Lyons (Leicester, East)
I want to express my complete agreement with the speech of my hon. and learned Friend the Member for Montgomery (Mr. C. Davies). Not one of us who opposes this Bill wishes to minimise in any way our unbounded appreciation of our American friends and Allies nor the warmth of our welcome, but we do not see any reason why we should agree to this striking innovation without its being shown that any 902 benefit accrues thereby. This is a great capitulation in the matter of a great constitutional asset, the right to be tried in a British court, which time and time again has been valued by foreigners here. Indeed, it is a matter of constitutional pride with us that when a man is tried on a criminal charge in this country, no matter how high or how humble he is, or what his rank or nationality, he gets tile same invariable standard of British justice. I think we can say with a great deal of pride that that is a matter of envy throughout the world. I do not want to repeat what my hon. and learned Friend said. He made a three-point objection, and I think every one of his objections was well founded. This Bill will give another jurisdiction here. I know of no argument which has been adduced to-day to justify this Measure. I know of no reason which has been put forward to justify a great constitutional innovation of this nature being rushed through this House. I see no reason why the situation should call for the novelty of what is almost a one-Clause negative Bill based upon certain discussions and conversations which we have not heard and of which we have no cognisance, and I say with profound respect for the two statesmen who had these discussions that it was a most improper way to treat this House in a matter of this nature.
My hon. Friend the Member for Southampton (Dr. Thomas) dealt with the argument put forward that because there is so much common stock in the two countries and in the derivation of the two systems of law it does not matter very much. That argument is a sham, if I may say so. The more community of interest there is, the less justification there is for a Measure of this nature, and I hope this House will show its disapproval of the manner in which it has been presented, and will say clearly that while it is always unfortunate to have to criticise something which is based upon a measure of agreement, it is not for us to sit silent. After discussions have taken place about which the two gentlemen who held the discussions think it best to tell the House nothing, this Bill is brought forward, and I resent its being presented to us as a more or less accomplished Measure. It is stated in the Bill that these discussions and the Agreement based upon them must be subject to Parliamentary sanction, or words to that effect, but that is only said 903 in passing, as it were. Of course, Parliamentary sanction is necessary, and it is here that we should insist on the maintenence of our safeguards, but I hope that Parliamentary sanction will never be given to a Measure of this kind without a far better case being made out for it than has been given to-day; and to wait until we are just about to separate for a substantial Recess—so it is said—before bringing in a Bill of this sort, based upon discussions which have been going on for months, and seeking to make this innovation retrospective for months, is to do something which I personally resent, and I hope that other Members will take the same stand in showing what they think of the Bill and the procedure behind it.
§ Mr. Hutchinson (Ilford)
We are all agreed that this Bill marks a very exceptional step in our constitutional procedure. I do not know that we should hesitate to take it for that reason alone, but, I am bound to say that I should have felt more satisfied if the correspondence which is scheduled to this Bill had begun with a letter from a representative of the United States Government setting out the reasons why his Government are desirous that their Forces should be the subject of this exceptional constitutional Measure. I am bound to say, too, that I agree with what has been said by my hon. and learned Friend the Member for Montgomery (Mr. C. Davies) that it would have been more satisfactory, and I say no more than that, from the standpoint of this House, if we had been given a rather longer opportunity of considering this Bill than has been afforded to us. We are all prepared, and gladly so, to take this exceptional step if our Allies desire it, and what we should concern ourselves with to-day is to ensure that nothing is done in this House which will adversely affect the individual rights or interests of any British subject. The intention of the Bill is, of course, not to affect the individual rights or interests of British subjects in any way, although I find it difficult to appreciate what the effect of Sub-section (3) of Clause 1 is intended to be. That Sub-section seems to raise an inference that there may be something in this Bill which would make a person subject to a liability, civil or criminal, in respect of something that he might do knowingly towards a member of the 904 Armed Forces of the United States. As I understand the rest of the Bill, there is nothing in it—I hope I am understanding it correctly—which imposes any liability upon any person at all. The only part of the Bill which makes me a little doubtful whether that is the intention is this Sub-section (3) of Clause 1. Perhaps when my right hon. and learned Friend comes to reply, he will give us some assurance that there is nothing in the Bill which will affect the individual rights of any British subject in matters of this nature.
There are two matters in which the interests of British subjects seem likely to be affected. The first is in cases where a joint offence is committed by a British subject and by a member of the Armed Forces of the United States. I feel that in those cases we do require some safeguard that the interests of British subjects will not be prejudiced by the fact that one of the offenders is being tried in an American military court in this country and the other offender is, or may be, tried by a British civilian court. It seems to me on the face of it to be unsatisfactory that two trials should take place in respect of what would clearly be a single offence. I hope we may have some assurance that administrative machinery is contemplated which will ensure that the rights and interests of British subjects are not prejudiced in a case of that nature. The other matter in which it appears to me that we should receive some assurance is the class of case to which my hon. and learned Friend the Member for Montgomery referred, that is the case of an offence against a girl which by our law may be unlawful but which by the law of the United States may not be unlawful, by reason of differences in the age of consent under the respective legal codes of the two countries or matters of that sort. The position will then arise that something has been done by a member of the United States Armed Forces which is an offence under British law but not under United States law. Proceedings must in that case be taken before the United States military tribunal, based upon a Section in the United States military code containing provisions of a general nature.
It appears entirely unsatisfactory that the matter should be left in that way. I can see that it would be undesirable that a member of the United States Military 905 Forces should be charged with an offence of such a kind under a general Section providing that it is an offence to do what is unlawful by the law of the country in which that member of the Armed Forces happens to be, and I hope we shall have some assurance that cases of that nature have been fully considered and that the rights of British subjects will not be jeopardised by any discrepancies between British and American law in that respect. The House will readily pass the Bill, drastic though its departure is from our constitutional practice. But we shall do it, not because we desire to establish a precedent for a future departure of the same sort, but because we desire to pay a special compliment to our Allies from the United States of America.
§ Mr. Silverman (Nelson and Colne)
If one thing is clear from the Debate so far it is that a great many Members, including some who are against the Measure altogether and some who are in favour of it in principle, would like an opportunity of closer examination of its provisions, and of amendment, in order to safeguard doubts which have arisen, and which I think they have made reasonable in their speeches. I would like to make an appeal to the Government and to the Leader of the House not to persist in the proposal to take this Measure through all its stages to-day.
Reference has been made to the Allied Forces Act, 1940, and to the Emergency Courts Act of the following year. I think that the Leader of the House was not in the country at the time of the passing of either of those Acts. If he takes the trouble to inform himself about them, I think he will find that on both occasions there was a Committee stage, in the second case, a somewhat protracted one, which resulted in the Government accepting a number of Amendments and, therefore, in what may be taken to be the universal opinion of this House that the Bills were improved by that examination. I cannot see what the Government would lose if they gave the House the same opportunity and the same consideration on this occasion as they gave it on those other occasions. I feel sure that the Government can entertain no doubt that the House would approach the question in the proper spirit, with a desire not to be obstructive but to be helpful. I cannot think that anyone really expects that any 906 harm can possibly be done. There is no urgency about it. [Interruption.] There can be no urgency about it. I understand that no one claims that there is.
§ Mr. Silverman
How can it be? The Bill is retrospective. What can the urgency be? It is not as though we were closing the Session at the end of the week so that if we did not pass the Bill it would have to be reintroduced in another Session. We are parting for a certain time, and when we come back the present Session will be resumed. If the Government rush the thing through to-day, they will give more power to the view which has been expressed that their real reason is not that there is any urgency but that they do not desire the agreement which has been dictated to them by Washington to be altered by one jot or tittle and that not one "i" shall be otherwise dotted or a "t" otherwise crossed. I do not think the Government are treating the House fairly in this matter' in bringing the Bill forward in this way. They are placing all of us in the very greatest difficulty. Unlike some Members who have spoken, I agree with the hon. and learned Member for Montgomery (Mr. C. Davies) that the Bill should be rejected.
When the Bill is brought forward in this way we are all conscious that what we say about it becomes the subject of comment in America and of misinterpretation and misunderstanding. Is it true that the Government have introduced the Bill in this way in order to prevent Members of the House from saying what they think about it? In the other cases that have been mentioned there was the fullest consultation beforehand. The discussions were protracted. Every kind of view was taken into account. The result was a better Measure than otherwise would have been the case. Here the House has not been consulted at all. We are placed in possession of a Bill with the intimation that it has already been agreed upon between our Foreign Office and the Department in charge of Foreign Affairs in America, and that all we can do is to give effect to it. For my part, I would not propose to give effect to it.
I agree with the reasons that have been given to us, and I do not propose to take up time by repeating them, but I would 907 like to make one additional point that has not been made or not been clearly made so far in the Debate. To my mind, the most serious aspect of this proposal is that it places the American soldier in this country in a position in which he would not be placed at home and in which the British soldier is not placed. Our system of Government and our way of life, for which millions of people are prepared to die and which perhaps on that account alone might be worthy of some consideration, could not continue except on the basis that the actions of officials, the actions of soldiers, the actions of anybody, are ultimately challengeable in the civil courts and not in the military courts. That is just as true of the American way of life as it is of ours. But in this solitary case, exceptional in American law, exceptional in our own law, the American soldier in England is to be placed above the law, above civil control and answer-able to no criminal code. The American soldier is not to be answerable to the American criminal law; he is to be answerable only to American military courts.
I do not want to join in the morbid prognostications of my hon. and learned Friend about some imaginary cases which he believes and hopes will never eventuate in any court, but I would like to put another subject which I believe and hope will never eventuate in any court. There are sometimes occasions of civil strife, civil commotion, civil disturbance, when it happens sometimes that it is necessary to call in soldiers to the aid of the civil power. It is conceivable, to say no more than that, that such an occasion might arise when American soldiers were used either alone or in conjunction with our own. What is the safeguard of democracy in this country on such an occasion? It is this, that whatever the soldier may do on such an occasion, under our law he will ultimately have to answer for it before a civil court and under civil law. But for this our country might become a military dictatorship. The ultimate sanction is that whatever he may do in an emergency and however the civil arm may ultimately justify what he did, still it is for the civil arm and not for the military court, it is for the civil law and not for the military code, ultimately to determine whether what was done was rightly done or not. Under this Bill, in 908 such a situation as I have conceived, ultimately British soldiers would be answerable to British law before British courts, and so our constitution would be preserved, our democracy preserved. But under this Bill, to what would the American soldier be answerable? He would be answerable to an American court-martial for breaches of the American military law, and answerable for nothing else, and it would presumably be a complete defence before such a tribunal that the American soldier obeyed the order of the American officer immediately, or more than immediately, superior to him. All this may be—and I gather that some hon. Members think it is—unnecessarily imaginative. I hope it is, but who knows?
This House has always been prepared to part with constitutional safeguards where it has been persuaded that the necessity for this existed in the military situation. We have passed a series of Defence Regulations, we have passed certain Emergency Acts, the Treason Act and others; we have made infringements on what we have normally thought to be our constitutional outlook. We have never refused to give those powers to the Government where a case has been made out that it was necessary for the Government to have the powers, and here, too, the House would not hesitate for one moment to pass this Bill if a case for its necessity had been made out. But no case for its necessity has been made out, and no case for its necessity has been suggested. I agree with the hon. Member who said that the more one proves the similarity of the two bodies of law, the more one proves the lack of necessity for this Bill. There is not any necessity for it. So far from there being any urgency for it, there is no necessity for it. One hon. Member said that, of course, we have the best system of justice in the world. I suppose we have; it is better than others, at any rate. We are entitled, at any rate, to think so; but I concede that the Americans are entitled to think theirs is better, but that is no reason for seeking to apply it without necessity on foreign soil.
Usually it has been held that any country has a right to defend its own institutions against anyone within its own territory, with the reciprocal right for others to do the same with theirs. I say that we have gone a very long way. It is admitted that the Bill is unique, that it is entirely without precedent, and it is 909 admitted, I should think, that what is done is not unsubstantial; but no one has attempted to say why it is necessary that we should do it. I should have liked somebody to have seen the whole correpondence. Who made the request, and on what grounds? Is this the co-operation to which some people look forward after the war? Are all our affairs to be dictated from Washington, or are we to retain some rights of our own, some rights to the sovereignty of our own law in our own land, except in cases where the necessity for a departure from that principle has been proved? Again, I hope the Government will not insist on carrying this Measure through all its stages at this Sitting. It would be a grave dereliction of their duty as executive custodians of our institutions and our principles to ask the House to pass a Measure such as this hastily, in an ill-considered way, and without time for thought.
§ Mr. Craik Henderson (Leeds, North-East)
The Bill which we are considering is, as far as our law and constitution are concerned, of a completely revolutionary character. It is very far-reaching indeed. I do not say that because of that it is undesirable that the Bill should be passed, but I do say that, having such a far-reaching effect and being so novel and revolutionary, it means that we ought to see all the repercussions and effects of what we are doing. I submit that at the present time we are dealing with a Bill which deals with only a very small portion of the problem. I presume that the reason for these proposals is, if possible, to avoid friction. That is a very desirable object, and I am sure we are all anxious that it should be effected, because the last thing any one of us wants is friction between our American Allies and ourselves. But I suggest that friendship can be destroyed more easily by friction than from almost any other cause, and unless there is more thinking-out of the problems which will arise out of these proposals there will be friction. I can understand the desire of the American Government for exclusive jurisdiction, and of course no question arises so far as that is concerned with their own subjects and with crimes against the person and property of other Americans. But when we come to deal with crimes against British subjects, then at once we enter into a very difficult field, where it is 910 very necessary that we should think out how friction can be avoided and how any feeling that there has been partiality or unfairness can be prevented, for these proposals will be a fertile ground for misunderstanding unless we are very careful.
An hon. Member has suggested that this Bill does not apply to Scotland and Northern Ireland. Quite obviously it does apply, it must apply. Clause 1, Sub-section (1) shows quite clearly that it applies to the whole United Kingdom, and in all the discussion that has taken place I am surprised that no Scottish Member is here to say a word about Scots law, because there has not been a word about Scots law from beginning to end, either here or in another place. Some of the things which have been said by the Lord Chancellor about the contents and method of American and British law seem to me to be pushed a little far.
I wish very briefly to raise one or two practical points on which I would like to have some light. One of the points is that under Clause 1, Sub-section (1) it is said thatno criminal proceedings shall be prosecuted in the United Kingdom,and there is no definition of "criminal proceedings." I do not know whether the intention is to have some tribunal to settle this point. For example, various people have mentioned forms of action which may arise, and I wish to mention one—affiliation cases.
§ Sir S. Cripps indicated dissent.
§ Mr. Craik Henderson
That is what I wish to be clear about. There is no doubt that the actual proceedings are not criminal, but enforcement may involve imprisonment and have been described as of the nature of a criminal case. Will enforcement of such an order be "criminal proceedings"? It is important to know definitely whether enforcement of these Orders are, or are not, "criminal proceedings." The point is that if not criminal then it means that an American soldier would be liable to imprisonment by English courts, which I think would be very undesirable indeed. It would be much better that we should have the same provision as there is in the Naval Discipline Act, the Army Act, and so on, that a certain proportion of his pay was to be deducted in payment.
911 That is a point which should be considered. There are many others. Some have been mentioned, such as the question of perjury in our courts and contempt of the British court. Surely, it would be quite wrong that perjury in our courts should be a question to be tried in the American courts. Then there is one other point which I notice Lord Atkin, who is a very distinguished jurist, mentioned in "The Times" newspaper, the question of minor offences. I think that this should be considered more fully. It seems to me that we are laying up an unnecessary amount of trouble if we are to have all these cases referred to American courts. I am quite sure that the ordinary American Service man would much rather have his offence of drunkenness or anything of that kind dealt with immediately than have all the trouble of having it brought up before the American court. I do not quite know how it is proposed that this should be done, but supposing an American soldier on leave from a Devonshire camp gets drunk in a Highland village, what is the procedure to be? Is the local doctor or the local policeman to go a long distance to give evidence, or where is the court to be which is to try the offence? I presume that there will be courts set up in the large towns but how are they to deal with the offences committed in small villages? It seems to me that that will cause an immense amount of unnecessary trouble and inconvenience, and I would ask both the American and the British authorities to consider whether that situation cannot be dealt with in a simpler way.
Another point which I think presents some difficulty is illustrated by an instance which I saw last week. An American motor lorry was being driven by an. American soldier, and inside the lorry were eight girls and eight American soldiers. Let us assume that this lorry has a collision with a lorry being driven by an Englishman, and that some of the girls and some of the American soldiers are killed. What happens? Is there to be a coroner's inquiry and then, as might normally happen in a case like that, a charge of manslaughter is brought against both the driver of the American lorry and the driver of the British lorry? Is the American court to try the American driver and the English court to try the English driver, and the English driver to 912 be a witness in the American court, and vice-versa? There I see tremendous ground for bitterness arising. Supposing the American court finds the man before it not guilty, and the English court finds the man before it guilty, or vice-versa, there will be great feeling that because a man was an American citizen he was let off, or that because a man was British he was let off. That is a point which requires to be carefully considered.
The Bill leaves out one point which is of course covered in the Note. That is where an American is arrested in this country, he has to be handed over to the American authorities, but there is not a word in the Bill—I quite understand the reason—that this man must be brought to trial and punished if found guilty. Incidentally there is one point I have not fully considered. Supposing an American soldier were handed over to the American military authorities, would it be competent for the man to bring a writ of habeas corpus if he was not let out on bail or was not brought to a speedy trial? It is a point to be considered whether the suspension of the writ should not apply in these circumstances. I also think that there should be some provision in the Act or elsewhere as to what law is to apply. We are told it is the military law of the United States, but there is not a word in the Bill as to what law is to apply, or even that a man is to be brought to trial at all or punished. It is a very important thing, and one of the points about which I think the House really has the greatest grievance. We are being asked to give up this very important jurisdiction without knowing the law and the details of the law which is to be applied because, speaking for myself and, I think, for the majority of the House, we have no idea of the exact terms of the military law of the United States.
There are one or two other small points which I want to deal with; I could refer to quite a number, but I do not want to take up the time of the House. If the American courts want British people to attend for interrogation, what is the procedure? May I say this, in no unfriendly way? The American films have created, I am sure, a quite imaginary picture of third-degree methods. I wonder what will be the effect on a country girl, or man, who is asked to submit to an interrogation by the American authorities. If 913 such a person refuses to attend, what powers are there to compel attendance. Also, what powers have the British courts to compel the attendance of an American soldier or sailor who is subpoenaed and refuses to attend? The British court would have no power to compel attendance or to punish. I think the whole of this question requires very careful consideration. But my main objection, as I have said, is to the fact that we have not been presented with a complete picture of the position. If we had been shown that all the difficulties had been thought out, and that there was some method by which differences between the two countries could be met, I would have raised no objection. The British Government, I suppose out of a desire to be tactful, have refrained from putting down the conditions which it was their duty to impose. They have approached the subject in a spirit of apology and humility. There is no need for any Uriah Heep attitude here. We are giving up, out of friendship, rights which have been won over a very long period. It is a serious change in our constitutional and legal practice and principles, and the British Government, in the interests of the British people, should have been very specific in their demands, and should have laid down conditions in the most unambiguous terms. I am not going to oppose the Bill, but I hope that at some time we shall be given a statement showing how all these problems will be dealt with, and that they will be thought out now, and not when friction arises later.
§ Commander Sir Archibald Southby (Epsom)
I think the remarks made by the hon. and learned Member for Montgomery (Mr. C. Davies) were exceedingly timely. Once again, the House is being asked to express its approval of a fait accompli. This Bill seeks, quite properly, to ease the path of those who have to deal with the legal position and the wellbeing of the United States troops whom we are very glad to welcome to this country. But we in this House are charged with looking after the interests of the British people, and it seems to me that we are being asked to express our approval of this Measure without having been told what code is to be operated in the American military courts, the code to which, to a certain extent, British citizens will, of necessity, be subject. We have 914 only been allowed to see a very small portion of the correspondence which must have passed between the respective Governments. I think that the Home Secretary was a little unfortunate in the language he used in moving the Second Reading of this Bill. He referred to the demand from the United States.
§ Sir A. Southby
I am bound to say that friends and Allies do not make claims or demands; they make requests. There may be—in fact, there is—extremely good reason why some Bill of this nature should be passed by the House, but we have not been told why it should be passed in such indecent haste. Hon. Members, in the quite brief discussion which has taken place, have brought forward all sorts of problems and difficulties which are bound to arise when the administration of this Act comes to be carried out. I myself have one or two points to bring forward. What is to be the position of a British subject who is involved with an American subject in a breach of the peace? Both are to be arrested by a British policeman but what are the powers of arrest of an American military policeman? Has he power to arrest a British subject, or must he get a British policeman to make the arrest? Who is to decide, and in what court is it to be decided, which of the individuals was responsible for the breach of the peace? Are they to be tried in different courts? Is each to be a witness in the court belonging to the country of the other? Other speakers have asked, what is to be the means by which witnesses will be compelled to attend court, but if a British subject declines to attend an American court, how is his attendance to be enforced? If the refusal is persisted in, and becomes contempt of court, how is the individual to be punished, and in whose court is he to be punished? Much more important is the question of who is to plead for the British subject in these cases. If a British subject is involved in some trouble with an American, is he to be allowed to have a solicitor or a barrister to watch the case on his behalf in the American court? The British subject is accustomed to having a case which involves him tried in open court. Will these American courts be open in the same way as the British courts are open? That is not clear. The hon. Member for North-East Leeds (Mr. Craik Henderson) raised 915 a point to which we should pay particular attention. in a case where an affiliation order has been made, involving an American subject, how is payment to be enforced? Under ordinary circumstances, the individual comes before the British court, and if payment is not forthcoming he can be punished. Who is to punish the American subject, and what certainty will there be that the payment will be made? What oath is to be administered to a British citizen attending an American court?
What reciprocity is there to be? We now have camps established in the United States, where British and Dominion naval officers and men are being right royally entertained, with the greatest kindness and hospitality, which they deeply appreciate. I feel sure that they will maintain the good name of their country by not committing any offences; but if any offences are committed, are they to be tried by British courts-martial, sitting over there? If not, why is there any delay' in setting up in the United States facilities corresponding to those which are being set up by this Bill?
I am going to make a suggestion to the right hon. and learned Gentleman the Attorney-General. There will obviously be a considerable amount of doubt and suspicion in the minds of ordinary British subjects—engendered perhaps by too close a study of American films dealing with legal proceedings—as to what is going to happen to them when they get into one of those American courts-martial. Since it is not yet quite clear to what extent they are going to be able to have their own legal advisers to look after them I would like to make a suggestion to the Attorney-General and it is this. Would it be possible for some British magistrate or Judge or recorder to sit in these courts as a kind of assessor in order to smooth out the difficulties which will undoubtedly arise in the application of the law which involves the subjects of two countries? It might be of the greatest possible help to the American military court to have some local magistrate sitting with it so that he could help with advice and whose presence in the court as an assessor in an official capacity would give confidence to the British witness or the British subject who was involved in the case. I ask the Attorney-General to give special consideration to that point, because I believe it would help this scheme to work.
916 At the same time the House must realise that we are, as many hon. and learned Gentlemen have said during the course of this Debate, doing something which has never before been done in this country. It is a complete departure from constitutional procedure. It has been done presumably at the request of the United States. It is a great pity that more has not been told us about how the request originated. You do not improve the good relationship between the two countries by putting a fait accompli on the table and as it were asking this House to agree to what is in fact a "pig in a poke." It does nothing but harm to come to all sorts of agreements and arrangements and then come to the House and say in effect, "You must agree to this. If you do not agree to it, you will endanger relationships between ourselves and the United States. You must not criticise unduly lest that should lead to misunderstanding on the other side of the Atlantic." There has been a great deal too much of that. The cause of Anglo-American friendship is not improved thereby. I have lived and worked and enjoyed a great deal of happiness in the United States, and I am certain that the desire for that sort of thing does not come from there. We have our rights and duties to perform, and so have they. We should all get on a great deal better if this House were consulted before major agreements of all kinds were entered into.
This is only another instance. Recently in the Press there have been announcements about the possibility of the appointment of an American generalissimo. That is not an arrangement which ought to be entered into and then suddenly put before this House and the House asked to agree to it without the matter having been previously discussed by the House. As regards our discussions to-day, it is a great pity that there should not have been more time to consider this very important Bill. If it is important to help the work of those who are responsible for the direction of the American Forces, then by all means let us pass this Measure, but let us make it clear that we realise what we are doing. We want a great deal more information about the code which is going to be operated in the American courts, and it is our duty and our right to ask for that information in the interests of the people whom we represent as Members of the House of Commons.
917 In conclusion, I ask the Attorney-General whether he will pay attention to the suggestion which I have put forward in all humility, and also I ask the Leader of the House whether he will perhaps take note of the objections which have come not from one side of the House alone but from all quarters of the House that this House does not like being asked to agree to a fait accompli. It is getting a little tired of being told in effect that too much criticism or any idea of disagreement with that fait accompli will not meet with approval.
§ Mr. Pickthorn (Cambridge University)
I make no apology for delaying the House, nor do I make any apology for the fact that much of what I am going to say will be repetition of what has already been said. It is extremely important in present circumstances that His Majesty's Government should know what is thought by Members of the House, and by how many Members. The hon. Member for North Aberdeen (Mr. Garro Jones), who spoke first from the Front Bench opposite, warned us all against pedantry, and that a little frightened me from hanging my discourse upon one single word. On the other hand, in the next sentence, he explained to us that the primary importance of this Bill is more political in the sense of conserving the relations between two great countries than it is technical or concerned with the mere administration of justice, however important. Basing myself on his second sentence, I would ask the attention of the House to the repeated use of the word "claim."
I am not familiar with this kind of Bill and this kind of Schedule, but I suppose it is in order to discuss every word that is in the Schedule, and one could discuss the Schedule at very great length. I do not propose to do that, but I would say incidentally that I do not think it quite rises to the literary standards which we have been accustomed to expect from the Foreign Office. However, the House generally expects literary instruction from my Oxford colleague rather than from myself. The expression in parts of this Schedule is not only inelegant from a literary point of view but inaccurate, and indeed, I might almost say, that it is illiterate unless it means what I think it ought not to mean. It seems to me, that on the plain reading of these words, the Foreign Secretary did allow himself to 918 compromise this House over legislation. He comes very near it in his first sentence, where there is a very perfunctory sort of nod to Parliamentary sovereignty over his left shoulder, but in his last sentence he comes nearer:If the foregoing arrangements are acceptable to the United States Government, I have the honour to propose that the present note and Your Excellency's reply be regarded as constituting an agreement between the two Governments to which effect shall be given as from the date on which the legislation to which I have already referred takes effect.There is nothing subjunctive about it, there is nothing in it which allows for the possibility that legislation might not take effect. The Foreign Secretary being a rather exceptionally an Englishman and not a Scotsman, the word "shall" is presumably used because it is meant. Altogether it seems to me that the accomplished fact in a poke to which my hon. and gallant Friend the Member for Epsom (Sir A. Southby) referred is quite unusually accomplished on this occasion. It is like the baby in the "Bab Ballads" or somewhere, born more than complete, with a beard and false teeth. I suggest that the Government are on this occasion carrying to a point almost beyond parity the habit which has grown up of not doing anything until the fifty-ninth minute of the eleventh hour, and then coming down to this House and saying that it is too late to do anything about it or discuss it or even clearly comprehend it, and we have to swallow it as it stands. War is, no doubt, a complex, an aggregate of odious necessities, and for all I have to say to the contrary, this Bill is a necessity too. The business of His Majesty's Government is to see that these necessities are made as little odious as can be arranged, and are brought to us in such a way and at such time that we can swallow them and digest them with the minimum of odium and inconvenience. I suggest that upon this occasion the Government really have passed all tolerable bounds.
I would point out this too. His Majesty's Government choose the hours at which we shall sit, and in my judgment choose them extremely badly. One of the worst things about our conduct of the war is the hours we sit and the days we sit. A technique has grown up by which one Minister comes down to us and makes a perfunctory speech and then goes away and another Minister comes into the House later and reads the notes taken for 919 him by a more or less competent subordinate, and, after listening for 40 minutes or so, he winds up the Debate. I do not know how many Members who listened to the Home Secretary are present now, but I make so bold as to say that anybody listening to him will agree with me that he treated this matter in a most perfunctory way. It might have been a Bill about rat-catching on Canvey Island. He told us that the American Army already had jurisdiction in domestic purposes for its members. He said, "All this Bill does," and so forth.
One good thing about the Schedule to the Bill is the word "desire" in the phrase,desire of the Government of the United States for this to happen.His Majesty's Principal Secretary of State, who has been accustomed now to large and not merely municipal business for a considerable number of months, presumably uses words he means to use, and he told us that the United States Government had "claimed" this. I should not have troubled the House if he had not said that three times. [An HON. MEMBER: "Hear, hear."] Yes, he said it three times, and I beg hon. Members who were not present to believe it, although they will no doubt find it difficult to believe that he was so very repetitive. I think the Foreign Secretary should be here. If he, in the document which is put before us, uses the word "desire," and later His Majesty's Secretary of State comes here and tells us three times that it is not a desire but a claim, they really should agree about these things. If neither can trust the other to use the same words, then both should be here in order that the right coat-tail should be pulled at the appropriate moment. I could speak at length upon this Bill. [HON. MEMBERS: "Go on."] For two pins I would.
§ Mr. Denville (Newcastle-on-Tyne, Central) rose—
§ Mr. Pickthorn
No, I will not give way now—it is too late. It needs very little imagination to tie on to this Bill everything that has happened in our previous history to this date and everything that has happened in America's history to this date. It requires little law learning to think of difficult corollary 920 questions. I think indeed that in some ways if one has a little law it is easier to put corollary questions than if one had considerable learning. However, the Bill is no doubt a necessity, if an odious necessity. If anybody called a Division to-day I think on the whole it would not be proper to vote against the Bill, because, obviously, at this stage it would be causing the greatest inconvenience to two great Governments if the Bill did not pass at the expected moment. Therefore, I do not propose to discuss at greater length the implications of the Bill and the corollary questions that might be raised upon it, but I hope the House will not-leave His Majesty's Ministers in any doubt at all that it considers this to be a very grave case of the growing practice of bringing matters before us at so late a stage and in such a form that they are unrelated not only to discussion but even to the comprehension of this House.
§ The Attorney-General (Sir Donald Somervell)
I think it is important to emphasise a few of one or two of the statements which have been made and, principally, that this Bill only affects dealings with the soldiers of the United States Forces who are present in this country. It is in respect of these individuals that the jurisdiction of our courts is excluded and that they will be dealt with by courts-martial. It is a matter in which we are concerned, and I am not for a moment minimising the constitutional gravity and importance of the subject which this Measure, if passed, will legalise. Members may not have been under any misapprehension, but words have been used which suggested that this Bill might enable some British subjects to be taken off before an American court, and, therefore, it is desirable to make perfectly clear at the outset what will happen.
§ The Attorney-General
As witnesses, yes. But I will come to that in a few minutes. I think it might be for the convenience of the House if I dealt first with a number of specific questions which have been put during the Debate and reserve until the end of my speech one or two of the more general observations I would like to make on the main principle of the Bill. The hon. Gentleman the Member for North Aberdeen (Mr. Garro Jones) 921 and others asked about the code. The code is the American equivalent for our Army Act, and it is called "The Articles of War." It is an application of American military law to the hypothetical offenders that will be applied by American courts-martial. Probably every Member of the House knows that under our own Army Act, with certain exceptions, what we would normally call civil offences can be dealt with by courts-martial. It a soldier commits burglary a civil court has jurisdiction, but he can be dealt with, under the appropriate Section of the Army Act, for the offence, and under the American military code there is full power to deal with all offences. Indeed, under the general Article which the Home Secretary read there is power to treat as an offence against discipline any disregard of any local law or regulation. Take, for instance, anything like a blackout offence. The American authorities assure us not only that they can but that they will deal with matters of that kind as an offence against discipline, as of course they are. One of the hall marks of a well disciplined force is the way it behaves when it is in the country of an Ally. In an occupied country different questions arise. Does it go about committing offences, disregarding local regulations and so on, or does it not? They have satisfied us that they can deal with these matters.
With regard to the code, we will arrange that a copy of this book will be put into the Library. There are not a great many copies in this country, but we will arrange that. The general layout of the code is that after dealing with certain military offences, duelling, and so on, it deals with murder and rape under a separate article. Perhaps it is worth noting, in passing, that the penalty for rape is death or imprisonment for life, which, of course, is a higher scale of penalty than we have in this country. Broadly speaking, as my right hon. Friend said, the penalties laid down in what we are told is the general scale of penalties would, I think, be satisfactory to hon. and right hon. Members. It then deals with various special crimes; there are articles dealing with manslaughter, with forgery, with burglary and so on. Then there is a general article, which my right hon. Friend read, which can be given a very wide application and which brings in offences, whether substantial or technical, other than those 922 previously dealt with in the special articles. The courts, of course, will be courts-martial in the ordinary case, though for minor matters there is, as one would expect, a power in the commanding officer to deal with them, as there is under our Army Act.
Some reference has been made to the letter which Lord Atkin wrote, and one of the points which he raised, and which has been raised by hon. Members here to-day, is the question of sexual offences. We have satisfied ourselves on that matter. I have referred to rape; carnal knowledge of a girl under 16 will be dealt with as what they call statutory rape, that is to say, rape to which consent is no answer, and that is an offence under their military law and will be dealt with as such. The only difference so far as I can see is that possibly the defence which is available here, if the male is under 23 years of age, may not be available under American law.
§ The Attorney-General
Sixteen, the same as ours. We have satisfied ourselves that that very important part of the code will be applied, and applied with vigour, by the authorities. Then there was a reference by my hon. Friend the Member for North Aberdeen to some remarks which my Noble Friend the Lord Chancellor made in another place with regard to supplementary machinery, I do not think that he intended to suggest anything in the nature of the tribunal to which my bon. Friend referred, but certainly there will be machinery for joint investigation, where it is necessary, of offences. The Americans will assist us in cases where we say that their men may have been involved in an offence committed by a British subject, and we shall assist them in the converse case.
May I say here what is, I think, very important and really goes to the root of this matter, and that is that we have had, are having and we know that we shall continue to have, the most cordial and friendly co-operation and help from the American authorities in the administration and working of this Measure? I quite agree that it is a scheme which could not work if the parties to it were to be at arm's length, and were standing on their dignity. The American authorities no doubt are very appreciative of the 923 way in which their desires, as expressed in the Note, have been met subject to the approval of the House, and they will, I am sure, give every help not only in the administrative working of the Measure but in seeing that it is carried out in a way which will be as satisfactory as possible to the Members of this House and to the members of the public affected, and so as to promote or at any rate to preserve and maintain the existing cordial relations, which, of course, they are most anxious to do.
§ Mr. Garro Jones
Before the right hon. and learned Gentleman leaves that point with regard to the machinery for the joint administration of the provisions of this Bill, there is already provision in the Schedule for the joint investigation of matters preliminary to the trial, that is to say, investigating and preparing evidence, and so on. The suggestion which many hon. Members have made was that there should be some tribunal or body which would deal with difficulties of greater importance as they arise. It was to that reference of the Lord Chancellor in another place that I drew attention, which had nothing to do with the collecting of evidence but with these important matters of collaboration. The sentence which I did not read is as follows:If there be difficulties"—he was referring to difficulties of a major character—it may be that hereafter some supplementary arrangements will be made.The contention of many hon. Members has been that serious difficulties may arise and that, in order to prevent the development of such difficulties, there should be prompt machinery for bringing them to a concrete conclusion.
§ The Attorney-General
I entirely agree with the spirit of that idea, but it may be well not to try and set up too definite a machinery until we are certain what form the difficulties will take. I can, however, assure my hon. Friend and the House that the American authorities are in constant and close touch with our authorities, and that if any difficulty does arise, every step will be taken to see that a satisfactory solution is arrived at with a minimum of delay.
A question was asked about witnesses. The position about witnesses is that 924 under paragraphs 2 and 3 of the Schedule to the United States of America (Visiting Forces) Order, which has already been issued, the provisions of our Naval Discipline Act and of the Army Act relating to witnesses at Service courts, apply to witnesses at United States courts-martial. The problem may to some extent already have arisen; the American court-martial has the same powers as one of our courts-martial to summon witnesses. I am not sure whether the final Orders have been made, but if not they will be made very shortly; it is also provided that witnesses appearing before United States Service courts enjoy the same immunities and privileges as if they were appearing before one of our own Service courts.
§ The Attorney-General
If a British subject disobeys an order to go to an American court, he will be dealt with by our courts. A question was also asked about the reports of proceedings in newspapers, and whether witnesses whose statements might be reported would have the same protection as prevails in respect of legal proceedings here. That, I think, is quite clear. Section 3 of the Law of Libel Act, which is the Section in question, refers to any court exercising judicial authority. It is not restricted to the High Courts and, quite plainly, applies to these courts.
§ Dr. Russell Thomas
Before my right hon. and learned Friend leaves this point concerning witnesses, have we power to summon witnesses who may be members of the American Armed Forces?
§ The Attorney-General
That does not arise under this Bill, of course, but we have the same power of summoning witnesses. There may always be some difficulty, as there might be with, say. Dominion Forces, in getting a subpoena served. I do not mean to suggest that they make any difficulty; if the subpoena is handed to the commanding officer of the American or Dominion soldier who is wanted, there is no difficulty.
§ Dr. Thomas
Perhaps I am not making it quite clear. Paragraph 8 of the Foreign Secretary's letter in the Schedule says: 925His Majesty's Government trust that they may count upon the assistance of the American authorities.…It is very indefinite.
§ The Attorney-General
I think that is a right now. It is always done that way; naturally it is a matter of international courtesy. Suppose a soldier of any Force is concerned in some trouble. He disappears back to his unit, and the ordinary machinery for getting in touch with him is through the commanding officer of the visiting Force. I have no doubt that they will give every assistance to us if we want one of their men as a witness in our proceedings. The question was raised about the right of appeal and delays, and my hon. and gallant Friend the Member for Lewes (Rear-Admiral Beamish) referred to the fact, which we all remember reading in the newspapers, that there were great delays in American criminal proceedings—these were civil proceedings, not proceedings before American courts-martial. There is no appeal in the ordinary sense, but there is a review of a kind with which my hon. and gallant Friend is no doubt familiar. There are special provisions preventing delays, and there is absolutely no reason to think that these matters will not be promptly dealt with.
§ The Attorney-General
I do not think so. I gather that my hon. and learned Friend is suggesting that some process could be taken in a court in the United States to quash the sentence of a court-martial here. I understand that that is not so. Suppose our Forces were in America. In that case you could not proceed here in respect of a court-martial decision which was taken in the United States against a British officer. That is the normal procedure with regard to appeals as far as I understand it, but I cannot be too categorical. Certainly every effort will be made by the authorities here to see that cases are dealt with expeditiously. I was asked about the position in the Dominions. This Bill does not apply to the Dominions, but my right hon. Friend, when introducing it, said that in Australia and New Zealand, where this problem has also arisen, negotiations similar to those which have resulted in this Measure are being conducted.
§ The Attorney-General
I do not know that there are American Forces stationed in Canada, but, if they are, it is for the American Government to take the matter up with the Canadian Government.
§ Mr. Davidson
Will the Attorney-General be a little more concise on that point, because in the Schedule it states:His Majesty's Government in the United Kingdom are prepared to extend the proposed legislation where necessary to British Colonies and Dependencies under their authority.Does he mean that before they do that there will be serious consultations with the Dominions and Dependencies?
§ The Attorney-General
No, Sir. That refers to Clause 3 of the Bill, which gives us power to extend this Measure to the Colonies. The Dominions, as always, will deal with their own affairs. It will apply to Northern Ireland. A particular class of Bill has to have a special extension Clause, but a Bill of this character includes Northern Ireland without using those special words. It is quite clear that Sub-section (3) of Clause 2 is to meet this sort of case. Suppose I, not knowing a man was a member of the United States Armed Forces, proceeded against him, then I should be doing something contrary to the Bill. Of course, if I had acted completely in ignorance, it would be wrong that I should be liable for what happened. Once it became known that the man was an American soldier and subject to American military law, the proceedings would stop. This provision is inserted to prevent innocent people, who proceeded in ignorance of the fact that a man was an American soldier, finding themselves under any liability.
Various Members raised the question of a joint offence—where a British soldier or a British civilian and a United States soldier were jointly concerned in an offence. Let me make it quite clear that a British civilian or a British soldier cannot be taken before an American court. No doubt the matter would be one for discussion between the two authorities. There might be no great disadvantage in having one tried before one court and the other tried before the other court, but, if it were disadvantageous, then it would be a case where the two Governments could discuss what I may call the "waiver provision," in which case the American soldier could 927 be tried in a British court with the British offender. With regard to the question of motor accidents, which was raised by the hon. Member for North-East Leeds (Mr. Craik Henderson), I do not think you very often prosecute both drivers for manslaughter. Normally, investigation results in showing that one man is more to blame, and very rarely would manslaughter proceedings be taken against both drivers. Certainly, theoretically it is possible to imagine a case in which both drivers are guilty of criminal negligence to such a degree that it constitutes manslaughter, but. I do not think it is likely to arise very often.
My hon. Friend the Member for Nelson and Colne (Mr. Silverman), who dislikes this Bill, suggested that it placed a United States soldier in a different position from that in his own country. I am not sure that it is so different as he thinks, because under the United States code the obligation which exists in certain cases to hand over to the civil authority is abrogated in war-time. I think he will find, although I must not be to dogmatic about this, that under the American code, which is somewhat different from ours, all offences are, in fact, dealt with by courts-martial during war-time, even though there are no actual hostilities in the country. It is really a matter more for the American authorities than for us, but, far from putting a United States soldier in a different position, it substantially puts him in the same position as in his own country, where normally all offences are dealt with by a military court.
§ Mr. Silverman
I was thinking of the illustration which I gave of the sanction, by which ultimately the act of a soldier is subject to the jurisdiction of a civil court. I was thinking of the calling-out of the military in case of riot or disturbance. Are we to understand that in America the American civil court would not exercise such jurisdiction over American soldiers?
§ The Attorney-General
I must not be too dogmatic about this. If you take the broad picture, I understand that in wartime at any rate, and also to some extent in peace-time, the whole range of offences are dealt with by courts-martial and not by civil courts. In this country, as we know, certain offences, even in war-time, are dealt with by civil courts. I think that is less so in America than here, and it 928 is no doubt another reason why the Americans desire this procedure. Then there is the case, if I may paraphrase what my hon. Friend the Member for North-East Leeds said, of the American soldier stationed at Land's End who commits an offence at John o' Groats. I should like to say that the American authorities are prepared to agree and will see that their courts sit, as far as is possible, in the very near neighbourhood of the offence. It was because that would not be practical in all cases that the waiver clause was agreed to; because you might have a minor offence committed a great distance away where it Would be a waste of everyone's time to send the necessary personnel to constitute a court-martial. It is to meet the convenience of members of the British public who might be required as witnesses, that courts will be assembled at the scene, or as near as may be to the scene, of the offence. To regard them as being stationary in the big cities does not give the right picture. It is intended that they should move to where the evidence is required.
My hon. and gallant Friend the Member for Epsom (Sir A. Southby) asked whether the United States military police could arrest a British subject. The answer is "No." He took the case of a breach of the peace committed by a British and an American soldier. I quite agree that one would be taken to one court and one to another. Again, generally, when a quarrel results, one man is more to blame than another, though it is theoretically possible to imagine a case where both are to blame. I do not think any great inconvenience can arise.
§ Sir A. Southby
I meant a case where both were concerned together in a breach of the peace—conspiring together.
§ The Attorney-General
Unless the waiver clause is in operation, one would have to go to one court and one to another. It is not infrequent not to have all the conspirators in the dock. You can charge a single man. It may happen that one man has flitted overseas, and A.B. is prosecuted for conspiring with CD., C.D. not being in the dock at all. Unless otherwise necessary for security reasons, the courts will sit as open courts, and those affected will be able to go in, taking solicitors with them if they want to, and hear the proceedings. The solicitor will 929 not have a right of audience but will be in a similar position to someone representing an interested party in our own courts. If security questions are involved, they will, of course, sit in camera.
§ Sir A. Southby
In a case where a summons for assault would normally be taken out by a British subject, if the case was heard in an American court, who would prosecute? Normally in our own courts it would be the solicitor of the British subject.
§ The Attorney-General
The prosecuting authority under the American military law. I was asked what form of oath will be given. It is almost word for word the oath administered in our own courts. My hon. Friend the Member for Cambridge University (Mr. Pickthorn), who does not like the Bill, took exception to the phrase "subject to the necessary Parliamentary authority." Surely that is the ordinary way to put it. It is plain enough. If Parliament repudiates the matter, that is an end of it. The phrase at the end, "the legislation previously referred to," is the legislation that gives the necessary Parliamentary authority. Everyone knows that this sort of thing cannot be done without Parliament, and it was not necessary to emphasise that fact to the American Ambassador.
§ The Attorney-General
That refers to the legislation already referred to. My hon. Friend is entitled to his own opinion, but I do not see any impropriety in the words used and they seem to make the position quite clear.
May I say a word or two on the more general issues that are raised? Obviously this is an unprecedented proposal, but we live in unprecedented times. It is undoubtedly true that in the course of our history we have on many fewer occasions had the Forces of an Ally present on British soil than in the case of Continental countries. There have been some Dutch Forces here from time to time in our past history, and I was told of an assault committed by a Dutch soldier on a local inhabitant and the magistrate having great difficulty in preventing the commanding officer stringing him up the nearest oak tree. But that was a long time ago. We had American troops in the 930 last war, and the Americans made exactly the same request that they are making to-day; it was only because the time was shorter, and that agreement was not come to, that Parliament was not asked to legislate oil these lines. But in fact American soldiers were dealt with by our courts, and they made exactly the same request.
§ The Attorney-General
No, the negotiations were not completed. The United States Government put this request forward on grounds of policy to some extent, and on constitutional grounds as far as the Forces are concerned, and they asked the Government to give it favourable consideration. I should like to make it clear that it is not solely a question of jurisdiction or prestige. The American authorities feel, I am sure we should feel the same ourselves with regard to an offence committed by an American soldier in our territory, that it was a double offence. First of all, there is the actual act, whether burglary, rape, murder or grievous bodily harm. Then there is the fact that it is done by a soldier, which is damaging to the reputation of the Army, and also something likely to impair the cordial and friendly relations between the Forces and the civil population among whom they are living and moving in present circumstances. We should feel just the same about our own Forces, that an offender had not only done something wrong in itself but had let down the name of the British Army. That is an element which a court-martial can take into account in giving its sentence, but a civil court here could not.
§ Mr. C. Davies
I did not mean that. I meant that the offender knows that it is an offence against military law.
§ The Attorney-General
The civil courts obviously could not take into account the fact that the man had done something which was damaging to the reputation of the Army to which he belongs. It could not take into account the fact that he was impairing the friendly relations between the visiting Force and the host population. These are matters which the military court can take into account, and the American authorities desire them to be taken into account. They desire that these offences should be dealt with as 931 offences not only in relation to the act criminal in itself, but in relation to the breach of discipline and the effect which that has on the relations between the American Forces and the population of this country. That, I suggest, is a very important element of this problem, and I can assure the House that if is one of the reasons which led the American authorities to ask us to agree to this proposal. This is, as every speaker has said, a novel proposal. It is one which at first sight legitimately brings us up with rather a shock. That the acceptance of it by this House will conduce to the good relations between the American Government and their Forces in this country and our Government, there is no doubt at all, and I believe that in its actual workings it will conduce more to the maintenance of order and the prevention of the offences which will come within its scope than if we adopted a different procedure.
§ Sir A. Southby
My right hon. and learned Friend did not refer to my suggestion about the possibility of a British magistrate sitting in the courts to help.
§ The Attorney-General
I think that that would be very difficult, but it would be a matter for them. We should find it difficult if we adopted a similar procedure in America to have an American magistrate sitting in the court. They are ready to pay attention to any representations we may make as to the working of this scheme, but I think that the suggestion of a magistrate sitting in court will be difficult to adopt.
§ Mr. Edmund Harvey (Combined English Universities)
Could my right hon. and learned Friend say why there is not a Clause limiting the operation of the Measure to the present emergency?
§ The Attorney-General
Because when all the American troops go, there will be nothing for the Measure to operate upon.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill read a Second time.
§ Bill committed to a Committee of the Whole House.—[Mr. J. P. L. Thomas.]
§ Bill immediately considered in Committee; reported, without Amendment; read the Third time, and passed, without Amendment.