3.3 p.m.
Order of the Day for the consideration of Commons Amendments read.
My Lords, I beg to move that the Commons Amendments be now considered. There are a substantial number of Amendments which have been made to this Bill in the Commons. On behalf of Her Majesty's Government, I am prepared to accept all the Amendments which were made. I do not know whether it would be in accordance with your Lordships' wishes that I should take them en bloc, giving to your Lordships the opportunity, of course, to raise any point in regard to any particular Amendment, or whether you would wish me to go through the Amendments one by one, putting the question upon each Amendment. I can tell your Lordships this: the Amendments make no substantial alteration to the principle of the Bill, and in many respects I think they improve it. In particular, they carry out some suggestions that I made when I was introducing this Bill to your Lordships, and in other respects I think they go some way to satisfy the demands that were made, both in this House and in the other place, to secure additional safeguards for the liberty of the subject. I do not know whether I might venture to ask the noble and learned Earl, Lord Jowitt, whether he would wish me to take one course or the other for the convenience of the House.
Moved, That the Commons Amendments be now considered.—( The Lord Chancellor.)
My Lords, so far as I am concerned, since I am asked, I feel that it would be better if the Lord Chancellor put the various clauses separately. I will say why I take that view. I think that some of these Amendments are exceedingly difficult to understand. So far as I am concerned, I have read and re-read them, and I do not know what they do at all. If I am in that position, it is possible that some other members of the House are in the same position. I feel that it would be useful to have some sort of explanation from the Lord Chancellor as we deal with the various clauses.
On Question, Motion agreed to.
Commons Amendment
[ The references are to Bill No. 141 as first printed for the House of Commons.]
Clause 1, page 2, line 6, after ("such") insert ("limitations").
My Lords, the first Amendment is one which was proposed by the Opposition in the other place as an additional safeguard, and was accepted by Her Majesty's Government. I do not think there can be any difficulty about accepting this Amendment. I beg to move.
Moved, That this House do agree with the Commons in the said Amendment.—( The Lord Chancellor.)
On Question, Motion agreed to.
Commons Amendment
Clause 2, page 2, line 26, at end insert—
("Provided that for the purposes of this subsection a person shall not be treated as a member of a visiting force of a country if he became (or last became) a member of that country's forces at a time when he was in the United Kingdom unless it is shown that he then became a member of those forces with his consent.")
My Lords, it is possible that this is one of the Amendments to which the noble and learned Earl, Lord Jowitt, referred. This Amendment is intended to cover a case of this kind—and if I mention any particular country I do riot do so in an invidious sense. Let me take Greece. Suppose that by the law of Greece every man, whether resident in Greece or elsewhere, is called up and becomes a member of the Greek forces; and suppose that there was a Greek visiting force in this country. That would operate to make a Greek waiter in Soho, against his will, a member of the visiting forces, and subject to the jurisdiction of the authority of those forces. It was thought proper not to include such a man in the scope of the Bill. For that reason the proviso was inserted. It was inserted, I may say, to meet a suggestion made by the Opposition in the other place. I beg to move.
Moved, That the House do agree with the Commons in the said Amendment.—( The Lord Chancellor.)
On Question, Motion agreed to.
Commons Amendment
Clause 2, page 2, line 37, at end insert—
("(4) Notwithstanding anything in the foregoing provisions of this section, a sentence of death passed by a service court of a country to which this section applies shall not be carried out in the United Kingdom unless under United Kingdom law a sentence of death could have been passed in a similar case.")
My Lords, this Amendment covers a case of this kind. It might be that under the law of the visiting force the penalty of death could be imposed for what we should regard as a minor crime—at any rate, a crime which did not carry a capital sentence in this country. The Agreement itself provided that in such a case the death penalty should not be inflicted. This is merely writing into the Bill the term of the Agreement itself. I beg to move.
Moved, That this House do agree with the Commons in the said Amendment.—( The Lord Chancellor.)
My Lords, I agree with this Amendment. May I say that I suggested to the noble and learned Lord, the Lord Chancellor, that, for the convenience of the House, he should take the various clauses separately? I do not think it necessary that he should go into each Amendment individually. He will realise that some clauses do raise difficulties, and if he puts the particular clause we will raise any difficulty which we may feel in relation to that clause. I say that merely to save the Lord Chancellor any trouble, so far as I can.
My Lords, whatever is convenient for the House is convenient to me. I want to assist the House in any way that I can.
On Question, Motion agreed to.
Commons Amendments
Clause 3, page 3, line 20, leave out ("was committed in the course of") and insert ("arose out of and in the course of his")
Page 3, line 36, at end insert—
("Provided that this subsection shall not apply if at the time when the offence is alleged to have been committed the alleged offender was a person not subject to the jurisdiction of the service courts of the country in question in accordance with the last foregoing section.")
My Lords, adopting the suggestion of the noble and learned Earl, I will put the Amendments to Clause 3 together. I beg to move.
Moved, That this House do agree with the Commons in the said Amendments.—( The Lord Chancellor.)
My Lords, I confess that I am a little uneasy about the first Amendment, and I wonder if the noble and learned Lord, the Lord Chancellor, can help me about this. We are making an alteration. We originally said if the alleged offence committed
We propose to strike out those words and to substitute the words"was committed in the course of duty."
therefore adding something, as I understand it. That is to say, it is not enough to say that it "arose in the course of." but must also "arise out of." This Amendment may have been moved by the Opposition in another place—I am afraid that I have not checked it, and I want to know what it means. Could the Lord Chancellor tell us what is the effect of this Amendment, because, after all, we are a revising Chamber, and we should understand what we are doing. I do not intend to object to any of these Amendments. I ask the Lord Chancellor this question: What, in his view, is the effect of this Amendment? We are no longer content to say "in the course of" and we now add the words "arose out of." For the moment I do not realise the sort of case to which that would apply."arose out of and in the course of his duty "—
I think I can help the noble and learned Earl in this. Indeed, I can do so by way of reminder, because when the matter was before this House on a previous occasion it was the noble and learned Earl himself who suggested that it may be an insufficient safeguard to say "in the course of his duty." The noble Earl gave as an example an offence of rape committed by a soldier. It might be suggested that as he was on duty the offence was committed "in the course of his duty." Nobody, I suppose, could suggest that it "arose out of" his duty, and accordingly these words were inserted. I do not think if I may say so with great respect, that the proposition of the noble and learned Earl was a sound one.
Neither do I.
The Amendment makes the position abundantly clear. That is why those words have been put in.
On Question, Motion agreed to.
Commons Amendments
Clause 5, page 5, line 6, at end insert ("or bail bond")
Clause 5, page 5,line 12, leave out lines 12 to 14.
Clause 5, page 5,line 25, leave out ("four") and insert ("three")
My Lords, I beg to move that this House do agree with the Commons in the said Amendments.
Moved, That this House do agree with the Commons in the said Amendments.—( The Lord Chancellor.)
On Question, Motion agreed to.
Commons Amendment
Clause 8, page 7, line 17, leave out subsections (1) and (2) and insert—
("(1) Where under any enactment a power is exercisable by any authority or person—
Her Majesty may by Order in Council make provision for securing that subject to any conditions specified by or under the Order the power shall be exercisable by that authority or person in the case of any visiting force to which the Order applies to any extent to which it would be so exercisable if the visiting force were a part of any of the home forces.
(2) Her Majesty may by Order in Council made as respects any visiting force make provision—
subject however to any conditions specified by or under the Order.
(3) Where by any enactment the doing of anything is prohibited, restricted or required in relation to—
Her Majesty may by Order in Council make provisions for securing that the prohibition, restriction or requirement shall have effect in the case of any visiting force to which the Order applies to any extent to which it so would have effect if the visiting force were a part of any of the home forces.
(4) An Order in Council under this section—
Page 7, line 39, leave out subsections (5) and (6) and insert—
("(7) In this section—
"enactment" means an enactment (passed either before or after the passing of this Act) of the Parliament of the United Kingdom or of the Parliament of Northern Ireland, and includes any instrument having effect under an enactment;
"property" includes both real and personal property, or in Scotland both heritable and moveable property.
(8) Subsections (1) and (3) of this section apply whether the power in question is exercisable, or the prohibition restriction or requirement in question is imposed, by provision expressly relating to the home forces or by more general provision, and subsection (2) of this section applies whether the exemption, privilege or immunity in question would subsist, or he capable of being conferred, by virtue of any such provision or by reason of any enactment's not binding the Crown.")
3.13 p.m.
My Lords, Clause 8 has been almost entirely rewritten. If I may say so, there is a great improvement in drafting, but the principle of the clause is not in any way altered. It has two main purposes, and they are important: first, to make it abundantly plain (upon which some doubt was expressed originally) that visiting forces should not themselves be able to exercise the compulsory powers which are referred to in the clause, and, secondly, to put them in no better position than that in which the home forces themselves could be put. Those are the two objects of the clause, which I think must commend themselves to everybody, and I think the way in which it has been done is an improvement upon the previous way. I beg to move that this House do agree with the Commons in the said Amendment.
Moved, That this House do agree with the Commons in the said Amendment.—( The Lord Chancellor.)
My Lords, this is the clause which I had in mind in my earlier remarks, I am bound to say that when I read the new clause I did not understand it, and I very much doubt whether any member of this House understands it now. But if the noble and learned Lord tells us that it is merely drafting—as I gather he does—that the substance of what we did before is being reproduced in rather better words, and that there is no substantial alteration to what we have already agreed, then I am prepared on that statement to accept the clause. I must say that I think it is a great pity—and I said this when I occupied the Woolsack—that these ideas have to be cast in such very obscure language. So far as I am concerned, it might almost be a foreign tongue with which we are dealing here, and if your Lordships look at the wording you will see what I mean. Nevertheless, the Lord Chancellor tells us it is all right, and we can rely upon him: he would not say that unless he were quite satisfied that it was all right. That being so I will not ask any further questions.
My Lords, I cannot assure your Lordships that everybody will understand the clause as now worded. I can assure your Lordships that it carries the matter no further than the clause of which it takes the place, except in this respect: that I think it provides some modification precisely on the lines indicated by Her Majesty's Opposition, both in this House and in another place.
Before the Lord Chancellor sits down may I say this? I do not suppose we are concerned with grammar, but is he satisfied with the phrase which appears at the end of this Amendment:
apostrophe "s"—"…or by reason of any enactment's"—
I venture to think that if in his younger days he had written that piece of English at Winchester he would have got into trouble."not binding the Crown."
I will take the noble Earl's word for it.
On Question, Motion agreed to.
Commons Amendment
Clause 9, page 8, line 32, at end insert—
("(2) The said Minister shall take such steps as may be requisite for securing that persons concerned with any arrangements made by him under this section shall be informed of the nature and operation of the arrangements.")
My Lords, the clause relates to civil claims upon which we had a good deal of discussion when the matter was last before your Lordships. I gave an assurance that something of this kind would be added. This has been added, and I hope that it will be satisfactory to your Lordships. I beg to move that this House do agree with the Commons in the said Amendment.
Moved, That this House do agree with the Commons in the said Amendment.—( The Lord Chancellor.)
On Question, Motion agreed to.
Commons Amendment
Clause 10, page 8, line 38, at end insert ("not being a passport issued by the passport authorities of the United Kingdom or an colony;").
Lords, I beg, to move that this House do agree with the Commons in this Amendment.
Moved, That this House do agree with the Commons in the said Amendment.—( The Lord Chancellor.)
On Question, Motion agreed to.
Commons Amendments
Clause 11, page 9, line 40, leave out from ("be") to end of line and insert ("sufficient evidence of the fact so stated unless the contrary is proved.")
Clause 11,page 10, line 23, leave out ("was committed in the course of") and insert ("arose out of and in the course of his")
Clause 11,page 10,line 26, leave out ("conclusive evidence of that fact.") and insert ("sufficient evidence of that fact unless the contrary is proved")
My Lords, I beg to move that this House do agree with the Commons in these Amendments.
Moved, That this House do agree with the Commons in the said Amendments.—( The Lord Chancellor.)
My Lords, the difficulty here arises on the last Amendment. If I understand it aright the position is as follows. Speaking broadly, under Clause 3 of this Bill an offence committed by a member of a visiting force in the course of his duty is not liable to be the subject of a trial before our courts. I believe that is the substance of it. There may be exceptions. What I have always been anxious about in this procedure is that there should not be a sort of battledore and shuttlecock between the two courts. There should not be uncertainty whether the case should be tried by the Service courts of the United States or by the courts of this country, because I can imagine nothing which is more likely to establish difficulties than our courts in this country granting what I suppose would be writs of prohibition and the like to the Service courts of the United States. I think that would be undesirable. I also think it is very undesirable that, if a man is to be tried, there should be real reason for doubt as to which court he is to be tried by.
As the Bill stood, we made the matter simple, because we said that a statement or certificate issued subsequently by the appropriate authority was to be conclusive evidence of the fact that the alleged offence was committed by the man in the course of his duty as a member of that force. Now we have altered that. I quite understand the reasons which have impelled the alteration, but I am very anxious that, because we have made the alteration, we shall not fall into the difficulty I have indicated. Instead of making the certificate conclusive evidence, we have made it sufficient evidence unless the contrary is proved. I think we can leave out the bizarre cases; the common case will be one of driving a motor car and causing damage; dangerous driving, or driving while under the influence of drink, or running, someone down, committing manslaughter and so on. The difficulty arises whether the soldier has driven that motor car in the course of his duty or whether, to use a phrase familiar to lawyers, he took an army vehicle "on a frolic of his own," and it is not easy to decide which of the two is right. I want some certainty that we may know beyond a peradventure which court is going to try this man, if he is in this country and is accused of manslaughter. Suppose the Service courts take the view that what happened was, broadly speaking, in the course of the man's duty, and that he argues the contrary and says it was not in the course of his duty but was a little adventure of his own. The point is taken; the Service courts convict him. Then, having raised the point, he can come to our courts here and ask our courts to grant a prohibition against the Service court on the ground that he is prepared now to establish the contrary—that is to say, that he was not acting in the course of his duty. If I understand the matter aright—and I do not think this is a fanciful case; it might well arise—our courts will have to embark on the question again, and if they think it proper they will grant a prohibition to that Service court and say, "You ought not to have dealt with that case." I am not saying we should not accept this Amendment—we have to. But I should like to be reassured that this very practical difficulty will not arise. I am anxious that we should have a clear line of demarcation in order that we may know which court is going to try the case. I do not think we should have this battledore and shuttlecock between the two courts. I shall be grateful if the noble and learned Lord the Lord Chancellor will tell me that my doubts are unnecessary and that there is no ambiguity. If he will do that I shall be perfectly happy; but in any case, as I have said, we quite realise that we have to accept this Amendment.My Lords, I think I can allay my noble and learned friend's anxiety. The question of a certificate is irrelevant to the jurisdiction of the court of the visiting forces. It arises only where a man is brought before a court of this country and it is said that he is a member of the visiting forces or that he has committed an offence in the course of his duty. When the Bill left this House we made the certificate of the authority of the visiting force conclusive of the fact that he was a member of the visiting force or that he had done that act in the course of his duty as a member of that force. We thought that was the best way to cut the knot, and not to let it be a matter of issue before the English court whether he was or was not a member of the visiting forces or had committed the act in his capacity as a member of that force. That was objected to by the noble and learned Earl in this House, and by members of the Opposition in another place, who said that it should not be left to the ipse dixit of an officer of the visiting force to say whether the man was a member of that force or not and that what he had done had been done by him as a member of that force. It should be made only prima facie evidence, which could be displaced by his own evidence. Therefore we have altered the Bill to give effect to that suggestion and have made the certificate not conclusive but sufficient evidence until it is displaced. I hope that that explanation entirely meets the objection of the noble and learned Earl. There is no question of going from one court to another, or anything of that kind.
My Lords, under Clause 3 (1) (a) of the Bill our courts have no jurisdiction if the alleged offence was committed "in the course of duty." Now, of course, the wording is to be
Our proposal was that the certificate should be conclusive evidence of that fact. If the certificate can be displaced it is doubtful whether or not the matter comes under Clause 3 (1) (a). There may be a conflict between the courts, the issue being whether the act was committed in the course of the man's duty. You have not now a binding certificate but only a provisional certificate, which can be objected to, and there might be an argument as to whether or not the act was committed in the course of his duty. You might have a case of an American soldier, when the American court would deal with it, and you might argue by prohibition in our court by saying, in effect, "You ought not to have dealt with this case; we shall now show that the certificate was wrongly given." I am afraid that the Lord Chancellor has not quite removed that doubt."arose out of and in the course of his duty as a member of that force…"
I am sorry that I have not quite removed the noble and learned Earl's doubts. Where a soldier who is an alleged member of a visiting force is brought before a United Kingdom court a certificate could be given, according to the Bill as it originally stood, by the officer of the visiting forces, saying, "This is a member of a visiting force." That, when this Bill left this House before, was conclusive. Now, the man is brought before a court in the United Kingdom and that court can say, "No, it is not conclusive; we will show that the certificate is wrong." That is the only result of the Amendment. I do not think it should do more than give pleasure to the noble and learned Earl, since it gives effect to the suggestion he made.
On Question, Motion agreed to.
Commons Amendments
Clause 14, page 13, line 14, leave out from ("be") to second ("and") in line 16 and insert ("sufficient evidence, unless the contrary is proved, that the request has been made and of its effect.")
Clause 14, page 13, line 23, leave out from beginning to ("of") in line 24 and insert ("sufficient evidence, unless the contrary is proved.")
My Lords, these are drafting Amendments. I beg to move that this House do agree with the Commons in the said Amendments.
Moved, That this House do agree with the Commons in the said Amendments.—( The Lord Chancellor.)
On Question, Motion agreed to.
Commons Amendments
Clause 17, page 14, line 47, leave out from ("country") to ("the") in line 2 on page 15.
Clause 17, page 15, line 7, at end insert—
("(2) For the purposes of this Act a member of a force of any country which (by whatever name called) is in the nature of a reserve or auxiliary force shall be deemed to be a member of that country's forces so long as but only so long as, he is called into actual service (by whatever expression described) or is called out for training; and any reference in this Act to a person's becoming a member of a country's forces shall be construed accordingly.")
My Lords, I beg to move that this House do agree with the Commons in the said Amendments.
Moved, That this House do agree with the Commons in the said Amendments.—( The Lord Chancellor.)
On Question, Motion agreed to.