Clause 6.—(PENALTY FOR INCITEMENT TO DISOBEDIENCE.) (Hansard, 1 March 1951)
HC Deb 01 March 1951 vol 484 cc2420-88
Mr. Henry Strauss (Norwich, South)

I beg to move, in page 8, line 37, after "person," to insert "maliciously and advisedly."

The grounds on which I move the insertion of these words I explained in the speech which I made on Second Reading, and the Financial Secretary, in making the winding-up speech in that debate, was good enough to say that he contemplated some amendment of the Clause. We have the advantage tonight of the presence of the right hon. and learned Gentleman the Attorney-General, who will, I think, grasp the point I have in mind if I state it very briefly.

The words which I propose to insert are words which have been familiar to the courts for a very long time, for they appear in Section I of the Incitement to Mutiny Act, 1797, which is one of the principal Acts in this branch of the law. They also appear in Section I of the Incitement to Disaffection Act, 1934, and it is on that Act that this Clause is mainly based. The words "maliciously and advisedly" did not appear in the 1934 Measure as originally introduced, but they were moved on the first day of the Sittings of the Standing Committee by Mr. Dingle Foot and they were at once accepted by the Attorney-General, Sir Thomas lnskip. I want to say what Mr. Dingle Foot said on that occasion. I do not allege that these words make any overwhelming difference, but I wish to quote one short sentence from Mr. Dingle Foot's speech on that occasion: It may be that these words are not entirely necessary, but I think we should do well to include them here, if only to make assurance doubly sure."—[OFFCICAL REPORT, Standing Committee A, 8th May, 1934; c. 238.] For the benefit of the lay members of the Committee, it may be convenient if I inform the Committee—I think this will be confirmed by the Attorney-General—that the effect of the words "maliciously and advisedly" is simply that they mean "knowingly." The judicial consideration of the meaning of the word "advisedly" occurred as early as 1797 in the case of Rex v. Fuller, and it is now clear that the effect of the words, the insertion of which I seek, is to insert the word "knowingly."

The argument in favour of the insertion of these words is twofold. First, it is the argument that was successfully addressed to the Standing Committee in 1934 and which was at once accepted by the then Attorney-General, Sir Thomas Inskip—it does make assurance doubly sure. But today there is an additional argument which is very clear and simple: if these words appear in the principal Act of 1797, and also appear in the Act of 1934 on which this Clause is based, there would be a serious danger, in my submission, that the courts would attach some significance to their apparently deliberate exclusion from this Statute. Therefore, I suggest to hon. Members in all quarters of the Committee that every reason for the insertion of these words that was valid in 1934 is valid today. In addition, there is the reason that there would be a serious danger of the courts misinterpreting the intention of the Government if these words were not now inserted.

The Attorney-General (Sir Hartley Shawcross)

May I say at once that it is my intention to accept this Amendment? I hope, however, Major Milner, that you will allow me to explain the reasons why I propose to take that course. Also I thought it might be for the convenience of the Committee if, with your permission and that of the Committee, I were to indicate a little more generally the position of the Government on the Amendments which immediately follow, and to say something about the legal implications of the Clause as a whole.

It may be that I ought to have sought an opportunity rather earlier of explaining the legal implications of the Clause as we understand it, but it is not always easy to do these things. Looking back on it, I wish that the Explanatory Memorandum had dealt with Clause 6 rather more fully, but it is always easy to be wise after the event in regard to what other people do. Anyway, I apologise to the Committee for that, but I should like to take the opportunity now of explaining how we see the legal effect of the Clause, and what we contemplate doing in regard to other Amendments on the Order Paper.

We appreciate very much—I certainly do—the concern expressed on both sides of the Committee at what was thought to be the intention and the effect of this Clause. I hope for my own part that I do not rate the importance of freedom of speech any lower than anybody else in the House of Commons on one side or the other. So much so that I have incurred criticism from time to time because, in the exercise of the discretion I have, to decide whether or not it is in the public interest to prosecute, I have often decided not to prosecute in cases where newspapers or other publications had undoubtedly rendered themselves liable to prosecution. For instance, I remember a case of obscenity that we discussed here at some length. Then there were other cases we have had—contempt of court, sedition, even possible treason. When I say that, I am not saying that I shall always refrain from prosecuting in these cases; but hitherto I think there has been only one case of this kind in which I have authorised a prosecution. That was a prosecution for sedition in a case involving allegations of anti-Semitism.

I wanted to say that because, although I am going to talk about the legal implications, this is really a political matter and I wanted to make quite clear my own political approach to the problem. I hope that nobody thinks that I am lacking in any respect for the general principles of freedom of speech and discussion of opinion. I like to say what I think. I often get into trouble for it. I insist on everybody else having their right to say what they think, even if they get into trouble for it.

But, of course, it is one thing to say, "This is the law; I do not like this law; I am going to agitate for its repeal. I am going to press my M.P. to take steps to get it upset." It is another thing to say, "This is the law; I urge you to break it." That, of course, is what this Clause is intended to deal with. That is the spirit in which we approach the purpose of this Clause. If this Clause had intended—it may unintentionally have had this result, and I propose to accept Amendments to make sure that it does not —in any significant way to increase the restrictions upon freedom of speech, it would not have found its place in this Bill at this time.

I subscribe to the view that, just because this is a dangerous, critical time in our country's affairs—and there certainly are subversive underground movements being built up to cause trouble—it is important for us in a free democracy to show, as far as we can without giving complete licence to those who would subvert our laws and institutions, that in a free democracy we do not need the absolute restriction upon freedom of speech and freedom of opinion which are characteristic of the Communist countries.

But the attacks which have been made on this Clause in the form in which it now stands have, as I very well appreciate, not come from Communists alone, although, of course, the Communists outside have been active in attacking it. The attacks have come from liberal-minded people on both sides of the Committee. They think that the Clause—and this is particularly illustrated by the Amendment which has been moved—is one which is intended to impose new restrictions on freedom of speech, and they think this Clause gives new powers to the Executive. The hon. and learned Member for Norwich, South (Mr. H. Strauss), suggested in his explanation of the meaning of the words, "maliciously and advisedly" that they would remove that misunderstanding. He put the matter very fairly.

It really does nothing of the kind. The object of the Clause was to bring into a single statutory provision the existing body of law relating to the incitement to seduction of members of His Majesty's Forces. Indeed, I think that the value of this Clause, some people might say, has been demonstrated by the misunderstanding which has arisen in regard to it. Many people believe that this is a Clause which greatly enlarges the law about these matters. In fact, it really does nothing of the kind. Under the Bill as it stands, under the Clauses that have already been passed, as the Committee appreciate, those who fail to obey the call-up notices that they receive commit an offence—a misdemeanour. Anyone who incites or seduces them to neglect that duty to respond to the call-up notices commits an offence.

9.45 p.m.

That offence already arises under the Incitement to Disaffection Act, 1934, which is in full force in relation to those who attempt to incite members of His Majesty's Forces, whether they are in the Z Reserve, or whatever they are, to disobey their duties to the Crown. That, I think, is the position. I am glad ti see the hon. and learned Gentleman nod on that point, on which I think all lawyers are agreed, but if this is a matter about which there is no legal doubt, it is a matter about which there has been great doubt in the public mind. The public have been inclined to think that the Act of 1934 applied only to Regular serving soldiers and did not affect those who were in the Reserve.

The matter does not by any mean stop there. In addition to the Act of 1934, there are the provisions of the law under which anybody who seduces or incites a serving soldier to disobey his duty or depart from his allegiance can be prosecuted. That is the Act of 1797, under which the penalty is imprisonment for life.

It is, moreover, a common law misdemeanour to incite a person to commit such offences as will arise under this Bill, and the penalty is imprisonment for any period which the court of assize or quarter sessions may think fit. It is an offence under the Summary Jurisdiction Act, and under the Accessories and Abettors Act, to counsel or procure the commission of misdemeanours and, of course, if there were a conspiracy to incite Class Z reservists not to respond to the call-up, that would be indictable and the punishment would be without limitation.

That being the position, what we thought would be fair, frank and convenient was to collect, as it were, all the existing provisions of the law, from the common law, from the old Statutes and from the new ones, and substantially embody them in one section which, so to speak, codified and clarified the law, so that nobody could be in any doubt about what the law really was.

Mr. S. Silverman

My right hon. and learned Friend does not really mean that all these previous enactments and provisions of the common law are hereby repealed in favour of this Clause?

The Attorney-General

No, I am not saying that, and that is why I used the expression "so to speak." The effect of the enactment of this Clause, with the Amendments which we are prepared to accept, would be that, under the Interpretation Act, where this Act covered the same ground as, or conflicts with, any earlier law, whether it is statutory or part of the common law, both cannot be applied, and it is the intention, of course, to proceed under this Clause, when it is enacted, and not under the earlier provisions of the Mutiny Act and the other Statutes. We cannot proceed on both; we have to make a selection, and the intention is—and that is why we are enacting this Clause—to proceed in the case of some of the graver offences by way of indictment, which would mean going to the courts of quarter session or assizes, but in the vast majority, though. I do not say all, of cases, all we should want to do would be to deal with them summarily. We want to have a clear procedure and the possibility of proceeding by way of indictment if the case is a very grave one.

That was the position as it struck us when we considered what to do about these matters. As a matter of fact, there were several possible courses. We could have said that the 1934 Act applied, that these other Statutes or the common law applied and that everybody must be on the look-Out; or we could have had a declaratory Clause in the Bill saying something to the same effect; but we thought that the best way was to be quite frank and open about it, and to say that we want to make quite clear to everybody, not that we are increasing the stringency of the existing law, but that this is the existing law and has been for a very long time. That is the broad effect of the Clause as we put it in the Bill.

The hon. and learned Gentleman has moved an Amendment to include these words "maliciously and advisedly." I do not disagree with anything that he said in his speech. He started by saying that he was not sure that the addition of these words really made any significant difference to the Clause. We omitted them in the first draft because we thought they did not make any significant difference. We though it was quite clear in the Clause as drafted that the offence was one which could only be committed intentionally. To endeavour to incite means to do something with intention. But I quite accept the argument put forward by the hon. and learned Gentleman that, looking back at the 1934 Act and comparing the two Statutes, it might have been thought that the dropping out of the words in the latter Statute resulted in some difference in their legal interpretation. Therefore, we are prepared to restore these words.

We are also prepared—and it may be for the convenience of the Committee if I indicate it now—to accept the Amendment in page 8, line 37, to leave out "endeavours to incite," and to insert "incites." We do not think that "endeavours to incite" really means anything at all. I will be quite frank about that. There are some precedents for language of that kind, but we think the proper word to use in the Clause is "incites," remembering always that an attempt to commit an offence is an offence in any event under the existing law. Therefore, the word "endeavours," if it is meant to refer to an intent, is really quite redundant, and it simplifies and clarifies the Clause to do without it.

We are prepared, too, to accept the Amendment in page 8, line 41, in the name of my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) to leave out from "discharge" to "he." I must be frank with the Committee and say that we do not really think these words add anything to the substance of the earlier words. A man is required to do his duty, and that means to do his duty to the best of his ability. That is every soldier's duty, and if anyone incites a man to do less than that it is an offence under the Clause as it would stand with the omission of these words.

Again, we are also prepared to accept the Amendments a little later on dealing with punishments. Those who take a nice view about the present value of money and the present value of time may think it is right to have four months instead of six months and £200 instead of £500. We take no strong view about that, but, if it is the view of this Committee we will go back to those sentences. Either of them, of course, was very much less than the punishments which could have been awarded at common law.

There it is. I am afraid I have been very long about it, but I thought it might help the Committee if we indicated the general position in regard to the matter. I hope that with the Amendments that I have indicated we will accept, with the explanation of the legal position as we see it under the existing law, and remembering that nothing in this Bill will prohibit persons who are so minded from inciting each other, inciting their M.Ps., inciting the public at large to secure an amendment of the law, and that all it does is to hit those who urge others to break the law, I hope that we shall secure the co-operation of hon. Members in getting this Clause in its amended form.

Mr. H. Macmillan

The procedure which we are now following is, perhaps a little novel, but I did not interrupt the right hon. and learned Attorney-General because I felt sure that what he was doing would be for the general convenience of the Committee and that we were, in a sense, discussing the Clause as a whole and getting the general view of the Government on this first Amendment. I therefore shall not try to speak at any length on that except to thank the Attorney-General for giving us this indication, which ought to make our progress much quicker. Since he has mentioned them, I should just like to say that we are naturally glad he has accepted the words in this first Amendment we are now considering, and the consequential words which will come later on.

We are glad that he proposes to leave out the words "endeavours to" on what appears to be the most sensible ground that they have no meaning, and we are glad that he reverts to the general words of the statute of 1934. He has the advantage of youth, for had he been here 17 years ago he would have taken part in the long, bitter and desperate debates when the Socialists declared every word of the Bill of 1934 to be a vile attack on the liberties of the people and the Act of a tyrannical government. This is the Act he now supports.

As to the Amendment to line 41 of Clause 6 to leave out the words after "discharge" I am not altogether satisfied that that is the right thing to do, but I do not want to press that now. When that Amendment comes up, perhaps my hon. Friends will have to ask one or two questions and between now and the Report stage we shall see whether there is any point in our fears or not. Perhaps that will be for the general convenience of the Committee.

Mr. Emrys Roberts

I am sure that in calling me, Major Milner, you cannot be described as having acted "maliciously or advisedly" within the meaning of this Clause. But as the right hon. Member for Bromley (Mr. H. Macmillan) said, it seems that we are having a general discussion at the moment on Clause 6 of the Bill and the Attorney-General did discuss Clause 6 as a whole. I do not want to seem ungracious in my attitude to the Attorney-General. I appreciate the concessions he has made to the Committee in accepting the Amendment proposed by the hon. and learned Member for Norwich, South (Mr. H. Strauss) and supported by my hon. Friends and myself.

I was about to quote to the Committee the words of wisdom spoken in the Standing Committee on the Incitement to Disaffection Bill in 1934. These were the words spoken there: It is also very curious, and it has happened in one or two paragraphs of this Bill, that the Government, for reasons best known to themselves, have left out the words 'maliciously and advisedly' in this Bill, although the Bill is obviously framed on the Incitement to Mutiny Act of 1797 in which those words do appear."—[OFFICIAL REPORT, Standing Committee A, 8th May, 1934; c. 247.] Those words were spoken by yourself, Major Milner, in the Standing Committee of 1934. The Attorney-General was concerned to argue that all the powers given in Clause 6 are possessed already and that what is said in Clause 6 does not really alter the state of the law. That raises the question why Clause 6 is put in the Bill at all.

The Chairman

I am afraid that we cannot go into the Clause as a whole. It was for the convenience of the Committee and with general agreement that the Attorney-General made something in the nature of a general statement covering a number of Amendments but I think we must revert to the normal position now and discuss the Amendments one by one if necessary, but I hope not at any length. I hope the Committee will agree that I should propose the Amendments and they can indicate whether they agree with them or not. If hon. Members wish to speak on any of them, they can, of course, do so. I do not think we can have reference to the Clause as a whole, which contains many other matters than those to which the Attorney-General referred.

10.0 p.m.

Mr. Silverman

On a point of order, Major Milner. I submit with respect that it would be for the convenience of the Committee if the statement that the Attorney-General made were capable of a little general discussion in the way that has already been permitted to the right hon. Member for Bromley (Mr. H. Macmillan). If that were possible it might avoid the necessity of a discussion later on the Question that the Clause stand part.

The Chairman

I am in the hands of the Committee, but I did hope that as the Committee seem to be in full agreement, we might dispose of the Amendments one by one.

Mr. Emrys Roberts

I take it that we shall be able to pursue this line of argument on the Question, "That the Clause stand part of the Bill." If that be so, I will certainly leave the matter, and I welcome the action of the Attorney-General in accepting this Amendment.

Amendment agreed to.

Amendment proposed: In page 8, line 37, leave out "endeavours to incite," and insert "incites."—[ Mr. H. Macmillan.]

Mr. H. Strauss

I promise that I shall not detain the Committee for more than a few moments because the right hon. and learned Gentleman has most usefully indi- cated that he will accept this Amendment. There is only one point which I wish to draw to his attention and to the attention of the Committee and which indicates that this Amendment is a little more serious than he thought. He said with perfect truth that there were some precedents for the words that I seek to amend. There are at least two Statutes in which those words appear. He also said quite truthfully that they are almost meaningless. But I suggest to him, with great respect, that he understated the matter when he said that the word "endeavours" was merely useless, whereas it is, in fact, something worse.

In my submission, he was right in pointing out that, if my Amendment is adopted, an attempt to commit the crime that will then be defined in the Clause will be a misdemeanour at common law. He did not, however, point out the full implications when he gave the impression that there was no difference between "endeavour" and "attempt." Unfortunately there is, because there is a case, Stuart and Others v. Taylor, reported in the Criminal Appeal Reports, in which Mr. Justice Avory used these words, and these were the words which made me think it particularly important that we should secure this Amendment: It may well be that a person may he said to he endeavouring to commit a crime, although he has not actually attempted to commit that crime within the sense in which the word attempt' has been defined. He may be endeavouring to commit a crime by taking some step towards the commission of the crime which is not sufficiently proximate to constitute the attempt. I believe that all hon. Members are well aware that a Clause of this kind, without proper safeguards, can endanger liberty. I believe that they will also agree that to make criminally punishable something less than an attempt, as defined by the criminal courts of this country, would be dangerous. I had that, among other things, in mind in drafting this Amendment, and I am glad that the Government are accepting it.

Amendment agreed to.

Mr. S. Silverman

I beg to move, in page 8, line 38, to leave out or liable to be called up. I think that, with your permission, Major Milner, and for the convenience of the Committee, we could discuss with this Amendment the next Amendment on the Order Paper, which I understand it is your intention to call—in page 8, line 40, to leave out "or may become."

The two Amendments are not quite the same thing, but they have the common object of reducing the numbers of people in respect of whom the offences in this Clause can be committed. One of the important things which I think was in everybody's mind, and with which the Attorney-General's statement did not deal, is that under the old law—the common law or the 1797 Act or the 1934 Act—the number of people who could be incited was extremely small, whereas the number of people who can be incited under the present Measure is extremely large. The object of these two Amendments is to narrow the field in which these offences can be committed to those who are, in fact, liable to serve or to be called upon to perform obligations under this Act, and not to include those who have not been called up, and not to include, either, those who are not even liable at any time to be called up under the present law, although they may become liable.

It is intended to leave out both those categories, and in listening to what my right hon. and learned Friend had to say, I was a little disappointed to note that he did not propose to accept either these Amendments or the principle of them. I hope he may see reason to reconsider his view about that. because I hope it is possible to persuade him that these two Amendments are well within the spirit of the statement which he made and could well have been accepted, if not in the precise form in which they appear on the Order Paper, then in some other form which he might prefer.

I would say this about the statement which my right hon. and learned Friend made. I think we are all extremely grateful to him both for having made that statement and also for the conciliatory and friendly manner in which he made it. I hope I shall not be treading unnecessarily or unduly on any corns if I say there is something, after all, in being a lawyer—[HON. MEMBERS: "No."]—because you learn, as some of my right hon. and learned Friend's colleagues in the Government may not have had the opportunity of learning, that if you want to carry people with you it is not very wise to go out of your way to antagonise them beforehand. I am sure the whole Committee will join with me in an expression of appreciation to the right hon. and learned Gentleman for the manner in which he made that statement. I understand from him that the real object of this Clause, without actually altering or repealing any of the laws which have preceded it on the Statute Book, or any part of the common law which is applicable, was merely to bring together in a compendious form the kind of provisions of the law which would have been applicable anyhow.

If that was the object of it, and it there has been any misunderstanding about it, I think the Committee may be forgiven for having fallen into that misunderstanding, because several of us on both sides of the Chamber during the Second Reading asked that very question. We pointed to the situation as it was in 1797, and the situation as it was in 1934, and we said that if there was anything in the present situation to need a new or stronger law or wider laws, we might be prepared to consider it, but that, in our view, that was not so. In reply to that the Under-Secretary of State for War, in winding up the Debate, had this to say: We should notice that this Clause has not been put in out of a vague or undefined fear. We know that there is being prepared a definite campaign to incite people not to perform their duties under the Bill. To that extent the reason for the Bill is sharper and more definite than it was for the 1934 Act."—[OFFICIAL REPORT, 26th February, 1951; Vol. 484, c. 1878.] I think that, in view of those remarks, all of us may be forgiven for continuing under the impression that the Clause was intended to be new law, and did, in fact, introduce a new definition of the law, and did, in fact, affect general rights in a way in which they were not affected previously. I think we are all very glad indeed to have the Attorney-General's assurance that that was not the intention; and that not being the intention, I would most seriously urge him to consider, having regard to the extremely wide range of persons who would, but for the Amendment I am now moving, be included within the scope of the mischief aimed at by this Clause, and in view of what he said tonight, whether this Amendment may not be acceptable.

It is not the intention, we were told on Second Reading—and the Attorney-General has repeated it tonight—to seek to limit anyone in his rights of expressing his opinions about this Bill or about the international situation or about pacifism or militarism generally, and it is not the intention to do anything more than to insist on what always was an offence—namely, to urge, or seek to urge, any person liable to be called upon not to perform his statutory duties.

With the words I would wish to leave out we do get beyond that, because it becomes an offence under the Clause to say things which might incite people who are not liable at all to perform any obligation under the law as it stands. If he will look at the second Amendment, I think the Attorney-General will see what I mean. I refer to line 40, on page 8, and my Amendment is to leave out from that line the words "or may become."

10.15 p.m.

It is quite clear that even though the words "maliciously and advisedly" were put in, that would be no protection in the case of a man saying things to people who are not likely to perform any service under the Bill as it stands, who are not being called up and who may hereafter become liable; no one can advisedly and maliciously incite somebody not to perform a duty he is under no liability to perform, yet if those words are left in an offence is obviously committed. It is quite clear that that is not the intention of the Government, as disclosed by the Attorney-General today. If that is so, I hope that my right hon. and learned Friend will find reason to accept the Amendment.

The Attorney-General

I listened with great care to the arguments put forward by my hon. Friend, and at the very outset I should like to say that if any misunderstanding arose about the Clause on Second Reading I must accept responsibility. It is difficult to be in two places at the same time, and it is not always possible to know which is the more important place to be. It might be that I could have been of assistance to the House on Second Reading and I am sorry I was not able to help in regard to this point at that time.

Although I was a little confused at one point of my hon. Friend's argument. I have appreciated what he has in mind. I am afraid I must reject the Amendment because, as I understand it, its effect would be both illogical, confusing and uncertain. The effect, as far as I can judge—and I am not quite certain I am judging this matter rightly, because I think the effect is very complicated—would be this, that under the Clause as amended in the way my hon. Friend proposes one would have to decide in each case whether the possibly criminal conduct, possibly criminal incitement, related to a man who had had his call-up papers yesterday or to one who was going to receive his call-up papers tomorrow.

It would sometimes—I would think very often—be exceedingly difficult to draw the line. For instance, a definite appeal to all Z reservists to refuse to respond to any call made upon them under the law might be a case which would fall on both sides of the line. Very often, of course, the incitement of the man who is going to receive his call-up papers tomorrow may be a more serious thing in its results than incitement of the man who has already received his call-up papers and has possibly responded to them.

In practice, if we accepted the Amendment proposed by my hon. Friend I think the position would be this. One could only prosecute under this Bill in its amended form for the post call-up notice offence, the post call-up incitement, if I may so describe it; but the pre-call-up incitement would still remain an offence; it would remain an offence under the 1934 Act, because these Z reservists are members of His Majesty's Forces liable to recall, as the law now stands, apart from any provision in this Bill. Under this Bill they incur a new liability, it is true, a liability to be called up for training. As soon as this Bill has been passed they will be under, not only their general liability to recall as members of His Majesty's Forces, but under the additional liability to recall for training. There are exceptions, but they are now liable to recall for service, not always for training or not always for so long a period of training as is provided here.

The result would be that where we have the kind of case which my hon. Friend envisaged—the incitement to Z reservists not to respond to a notice which they have not yet received—that would quite definitely constitute an offence under the 1934 Act, under the statute which I have mentioned and at common law. One would very often be compelled to use the heavier common law procedure and say that in this case one is going to proceed under the 1934 Act, and in that case one is going to proceed under the 1951 Act. We should get a position of very considerable confusion between the various alternatives. I am not at all sure what the eventual result at the end of the day would be.

I want to reiterate what I have said before. If all that is said by the pacifists —the person who is perfectly honest and sincere in his views about these matters in the way in which my hon. Friend suggested—is, "We object to any steps being taken to call out the troops; we think that our M.Ps. ought to protest and get the law altered about that; we are going to agitate for an alteration in the law," that would not be an offence, either under this Act or, as far as I know, under any other Act, because it is perfectly right for members of the public to agitate for changes in the law by constitutional means.

It is only if it is said, "This is the law; you men are under an obligation to respond to the call-up notices; if you get them, break the law and don't respond," that this or the 1934 Act or the common law could be and would be invoked. If we have the Clause in its present form taking the place for practical purposes, as it were, of the common law procedure—

The Chairman

I am sorry but I hope the right hon. and learned Gentleman will not give us another general dissertation. We are on a precise Amendment, and I am very anxious that the Committee should keep to the Amendments rather than we should have a rambling debate in which perhaps other hon. Members may wish to take part. This is quite a short point. If the right hon. and learned Gentleman relates it to the general position, well and good.

The Attorney-General

I do not want to pursue the matter, but I was going to add, because this point is directly relevant to the Amendment, that if the, Clause is left as it stands there will be no prosecution under this Clause without the consent of the Attorney-General. If the Clause is amended as suggested it will always be possible for anyone to prosecute under the common law provisions or the earlier statutes.

Mr. S. Silverman

Applying that argument to the first Amendment, if I had my way it would make the offence apply only to those who had been called up. I accept the Attorney-General's reasons for not accepting that. He says that it may be more dangerous to incite those who have not received notice than to incite those who may have received notice. He has not said one word about the second of the Amendments—the one to leave out the words "Or may become." The Clause makes it possible to commit an offence by inciting the man who has had notice, by inciting the man who gets a notice, as the law now stands, tomorrow or next week, and it also makes possible the offence of inciting someone who, under the law as it stands, cannot be liable at all, has not received a notice, cannot receive a notice and cannot at some future date, become liable.

The Attorney-General

I will look at that point. That is not the intention of the Clause. The intention of the Clause is that it shall apply to the man who has already received notice which makes him liable for training or is liable to receive notice which will make him liable for training.

Mr. J. Hudson

I regret to prolong the debate when there is a general desire to bring it to a conclusion. My right hon. and learned Friend's commitments are well received, and I accept them, but I am doubtful whether another Attorney-General would be so sure of carrying out what he has said, as I am sure he him-Self is. [HON. MEMBERS: "Oh."] I dare say that if there were an Attorney-General in a Conservative administration he would act quite differently, as we have found in the case of Attorneys-General in the past.

Although my right hon. and learned Friend is very emphatic that any appeal for repeal of legislation will not be regarded as coming within the terms of the Bill and as being of criminal intent, which I am willing to accept, I would point out that in the past a statement just as explicit was made by the then Home Secretary but that it did not prevent me from being ultimately punished. We were then promised that there would be no prosecution of persons carrying on political pro- paganda for the purpose of altering the Act in question, but within a week or two of the statement being made, prosecutions took place concerning a leaflet distributed to men involved in the call-up, the title being "Repeal the Act." The arguments were all political and were for the purpose of getting that Act repealed.

Two of my hon. Friends appeared at the trial at the Mansion House and were fined with three other friends. They were fined £800 and received 61 days' imprisonment for that simple offence. I am very proud to say that these two hon. Friends have been with me tonight in the Lobby voting against the Government. They are not likely to be taken in. I accept my right hon. and learned Friend's intentions, but I assure the Committee from what has taken place in the past that we are right in being extremely careful to see that there is no interference with the right of political discussion to bring about the repeal of legislation.

Mr. S. Silverman

I accept the argument on the first Amendment. I do not think that my argument is really tenable. I feel rather satisfied, however, that I am right in regard to the second. In view of the undertaking that my right hon. and learned Friend will look at it again, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. S. Silverman

I beg to move, in page 8, line 41, to leave out from "discharge," to "he," in line 43.

I do not think it is necessary for me to say very much on this Amendment, but as this is almost an historic occasion, the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke) and I having independently arrived at exactly the same conclusion, it ought not to pass without some comment. When we are unanimous, it may cause others to believe that we have not made a mistake.

10.30 p.m.

Viscount Hinchingbrooke

I should like to have the honour of supporting the Amendment. By what process of reasoning the hon. Gentleman arrived at putting his name to this Amendment, I do not know. He has not disclosed it, but there was certainly no collusion between us, he assured about that. Minds of a sort think alike.

I am glad that the right hon. and learned Gentleman has accepted this Amendment. I have never thought it was possible to divide a soldier's duty. I know of no priorities in his duty. I was glad to hear the right hon. and learned Gentleman say that, because it takes away a dark shadow lying across a fairly innocent and innocuous conversation between reservists, or Z men or civilians in places of public amenity, such as a public house, in discussions on the international situation, or the wisdom of the Government's policy, or even on the possibility of a change of the Act or that it should not be renewed for another year. That has been removed by the right hon. and learned Gentleman's acceptance of this Amendment, and I am very glad he has done so.

Mr. Manningham-Buller

The right hon. and learned Gentleman said in his general statement that the words proposed to be left out were already covered in the first part of the subsection. Then, if my hearing was correct, he added some words to the first part of the subsection. I should like him to consider carefully whether it is really so—that the first part does include the second. As I understand it, the first part deals with the failure in performance or the evasion of duties; the second part does not deal with failure in performance, but with performance at a slower rate than is desirable. I am not sure whether the right hon. and learned Gentleman is right in saying that without the words he uttered in his speech the first part is sufficient. I hope he will look at it again.

The Attorney-General

There is very little doubt about that. I feel sure and so advise the Committee that a soldier's duty, and anybody else's duty, for that matter, is the discharge of each obligation imposed upon him to the best of his ability. A soldier who goes slow or does not discharge his duties properly is committing an offence for which he would be punished under the Army Act. I think the words, "failure in the performance" of his duties means failure to perform his duties to the best of his capacity.

Amendment agreed to.

Further Amendment made: In page 8, line 41, after the second "or" to insert "maliciously and advisedly."—[ Mr. H. Strauss.]

Mr. Fenner Brockway

On a point of order. May I draw your attention, Major Milner, to an Amendment in my name on page 8, line 44, at the end, to insert: Provided that nothing in this section shall make the bona fide expression of opinion on matters of public interests an offence. Are you not going to call that Amendment?

The Chairman

No, I have not been able to select the hon. Gentleman's Amendment.

Mr. MacColl (Widnes)

I beg to move, in page 9, line 1, to leave out from "commit" to "an" in line 2.

I am sorry to detain the Committee, but I would like to warn hon. Members against the net spread in the sight of the bird. It is easy for the Government to put a Clause in the Bill which startles everybody by its context, and then withdraw it on the Committee stage, and offer as a substitute the 1934 Act, as though that Act was something beyond all criticism and must be accepted without amendment. It is true that the 1934 Act, after it had been subjected to considerable criticism by the Labour Party, became a better Act than it was a Bill, but it contains some very vicious provisions.

Therefore, my hon. Friend the Member for Walsall (Mr. W. Wells) and myself have put down two Amendments directing attention to two deplorable features of that Act which are repeated in this Clause. The one I have now proposed would delete the words "aid, abet, counsel or procure" from subsection 2 so that the provision would read: If any person with intent to commit an offence … The real mischief of this subsection is that it makes very alarming departures from the normal practice of the law. It makes possession of a document in itself an offence, and not the publication of that document. According to the subsection, if one has in one's possession a document which in almost any circumstances may be a perfectly harmless document which anyone is entitled to have, if it is a document which, if used in a certain way, might lead to the commission of an offence, it comes within the subsection.

It is, therefore, important that the Committee should be clear what the circumstances are in which the mere possession of a document without any overt attempt to publish it is to be an offence. I am prepared, however, reluctantly to go with the Attorney-General: we have to have this Bill and we have to have in it a Clause making it an offence to incite someone not to undertake his obligation under the Bill. I am prepared to say that it is only reasonable, where there are "stooges" distributing literature and we want to get at the principal behind those "stooges," to say that the person possessing the document would himself be incited.

I cannot, however, see why it is necessary to have in this subsection obscure and vague words. Why should it be possible to say to a man, "You have a document which, in itself, we cannot complain about, but if it got into the hands of somebody who was being called up it would incite them to evade their responsibilities, and it was your intention to incite a person in that?" That is an extraordinarily vague kind of charge to bring. I appreciate that some hon. Members may feel that "intent" is important, and, that it does not much matter whether persons were intending to do it or were counselling somebody else to do it.

I would suggest to the Committee that by the time the lawyers have finished with the word "intent" it could have a very different meaning from that which the average person thinks it has. It is a common thing in law that a person is presumed to expect the natural and probable consequences of his acts, and so forth. But by the time that unfortunate person gets into court, he may find that the evidence of intent is different from what the ordinary layman in this Committee has thought, and that person is regarded in law as intending consciously and advisedly to commit an offence.

My misgiving about this is that if it means anything at all, it must be somehow extending the scope of what is, prima facie, a very pernicious subsection which ought to be interpreted as strictly as possible. If it means anything, I think it is really obscuring the subsection, making it more difficult to understand, and more easy for the courts to expand it beyond the intention of the Committee. I hope that my right hon. and learned Friend will not content himself with saying that the words are in the 1934 Act. The fact is that the Labour Party, including Prime Minister, divided against that Act, because it was considered to be a very vicious Act, and that would hardly be a convincing argument.

The Attorney-General

In spite of the appeal made by my hon. Friend I must refer to the 1934 Act, not for the purpose simply of saying that these identical words were in that Act, but because failure to follow them in this Clause would create a divergence between the 1934 Act and the present Bill which would give rise to great complication in practice. It is only because this Clause covers the same ground as the 1934 Act that that Act will, by implication, not apply in relation to the persons affected by this Bill.

If we were to introduce any significant changes—and this would be a very significant change—between the 1934 Act and this Bill, the old statute would continue to cover the gaps not covered by the present Bill. Consequently, one would be left with these offences still existing under the 1934 Act. One might have a case where one would be able to prosecute in respect of direct incitement under the new 1951 Act, as this Bill will become, and under the 1934 Act, under Section 2 (1) in regard to the possession of the documents. Consequently, the only result of accepting this Amendment would be to complicate the procedure and to make the general position uncertain.

I want to emphasise, in addition, that the mere possession of documents is not enough. The prosecution has to prove in these cases—and it is a very heavy onus to discharge when dealing simply with the possession of documents—that the defendant had them in his possession with the specific intention of aiding and abetting the commission of an offence, either by others or by himself, under the Section 2 (1). I think it is important to retain this provision. We cannot repeal it; it is already in the 1934 Act, and unless we cover it in this Bill the provision in the 1934 Act will remain operative.

I think it is desirable to retain the provision for the reason that while it is fairly easy to get at the puppets or "stooges," or whatever they may be called, it is usually difficult to get at those who are careful to remain in the background, but who provide the material for subversion—the ammunition which they are afraid to shoot themselves, but which they get other people to shoot for them. That is why it is desirable to have this power to deal with people who are really behind any movement of this kind which may take place.

Amendment negatived.

10.45 p.m.

The Deputy-Chairman

I think that the Amendment in the name of the hon. Member for Nelson and Colne (Mr. S. Silverman), in page 9, line 6, could be discussed with the Amendment in page 10, line 16, to insert the new subsection 9, and that to page 10, line 46, in the name of the hon. Member for Ealing, North (Mr. J. Hudson). They can go together.

Mr. Silverman

With respect, Sir Charles, I do not accept the view that the Amendment to insert the new subsection 9 contains the same point as that in my Amendment. I should like to deal with that separately, and confine myself to it.

I beg to move, in page 9, line 6, at the end, to insert: Provided that the mere possession or control of such document shall not of itself he evidence of such intent, nor shall the court have regard to or be entitled to take cognisance of the political belief of any person accused hereunder for the purpose of establishing such intent. To explain why I should like to have these words added to the Clause, might I remind the Committee how wrong we are at present? We are making it—and I know that it was so in the 1934 Act, but, nevertheless, we are doing it here a criminal offence for a person to have a document "with an intention." That may be some intention to commit an offence which is not, at common law, punishable. To commit the offence itself is punishable, but the mere intent to commit the offence is not normally regarded as an offence of itself.

What this Clause does at present is to say that, if one has in one's possession a document which, if widely disseminated in certain places, might constitute an offence, then, in fact, an offence has been committed. If one has this document with the intent to do something, although one has never done that thing, nor attempted it, the conjunction of those two factors constitutes an offence under the criminal law.

Those who know the 1934 Act and the discussion upon it will remember that that was described as a very serious new inroad into civil liberty; and that was perfectly right. Some 17 years have now gone by since then and, in matters of liberty, as in economic matters, there is a kind of Gresham's Law—the worse principle gradually displacing the better, until somehow or other, one becomes so accustomed to the new situation that one's standards and ideals are lowered. Then, when new things are introduced to bring them lower, they pass by almost unnoticed without the Committee seeing a further inroad being made.

Therefore, I attach considerable importance, if we are to have this vicious thing. re-enacted in these circumstances, to having it, at any rate, safeguarded, even if the words are sometimes superfluous or repetitive. It is worth while to have them in so as to make it quite clear that we are going thus far and no farther than that. I am asking, in this Amendment, that the mere possession of documents, no matter how mischievous or dangerous they may appear to be, shall not entitle the prosecution to say to the court that if the person was not going to commit an offence under this Act, why had he these documents in his possession, so that the documents themselves would become evidence of the intent.

I heard what the Attorney-General said when he was dealing with the last Amendment, and I am sure he will be able to satisfy me on this point because he said the mere possession of the document without the proof of the intent was not aimed at in this subsection. I would like to have it specifically enacted, in the very words of the Clause, that the possession of the document itself was not to be evidence of any criminal intent of any kind so that the prosecution will have to assume the onus of proving, first, the possession of the document; then, that the document, if disseminated, might be or would be an offence under the previous subsection, and beyond that, should have some evidence to show that there was the intent to commit or aid the commission of such an offence, in addition to the mere possession of a document capable of committing it.

That is the first half of the Amendment, and the other half, I think, is almost more important: nor shall the court have regard to or be entitled to take cognisance of the political belief of any person accused hereunder for the purpose of establishing such intent. My hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes), in discussing a previous Amendment, referred to the Communists. Communists are not popular. In matters of civil liberty, it is the people who are unpopular who are in most danger. But if one found a lot of copies of the Sermon on the Mount in the possession of a member of the Society of Friends, even though he were known to be a firm and relentless pacifist, no one would think in those circumstances of saying, "You have got these documents in your possession because you want to distribute them to soldiers in order to seduce soldiers from their duty."

Mr. J. Hudson

People said that in the First World War.

Hon. Members

No.

Mr. Silverman

I am sure that on such a point my hon. Friend is more likely to be right than those who say, "No." No one would say that my hon. Friend, whatever might have been thought of him during 1914–18, and if this happened to him today, is known to be an absolute pacifist of the most relentless kind and what rightful purpose, therefore, could he have in having all these copies of the Sermon on the Mount in his possession, unless it was for the purpose of seducing soldiers from their duty. Nobody would say it to him although he says that between 1914–18 there were people in a like case. I do not think it would be said now.

I think we have become more accustomed to dealing with these matters, and although, in many respects, the standards of public tolerance may have fallen in the past 20 or 30 years—and I think they have in many ways—in this particular respect I believe that conscientious objectors and pacifists have a slightly easier time than they had in those days.

As the Committee agreed a few minutes ago, that would not be true of people of political faiths and creeds that are unpopular, that are feared, and that, in the event of war, would become even more unpopular than they are now. So there would be a considerable danger that the prosecution would slide out of the onus which lies upon it of proving the intent necessary to the offence merely by saying, "Here you have a lot of copies of the Communist manifesto; you are leading member of the Communist cell, or whatever they call it in the district, and those two facts, taken together, are proof upon which the court would be entitled to convict you of committing an offence under this subsection." My Amendment is intended to make it quite clear, by the words of the statute, that that is not to be done.

I am quite certain that no hon. Member would like or desire it to be done. I think we would be unanimous in saying that it would be wrong to do it, and I think most courts, at any rate in times which were not exciting times or feverish times, would be reluctant to do it. They might do it in other times, and I should not be sure of all courts at any time in such matters. It would be a matter of wise and prudent precaution to accept these words and put them on the Statute Book. They cannot possibly do the slightest harm to any legitimate intention that was to be served by the promotion of this Measure; they do not weaken the Measure in any way and they do not prevent the courts from convicting and imposing a penalty in any case where the Committee really desire a conviction and a penalty.

The words are an additional safeguard which, at the very worst, are superfluous and at the best are a precaution and a fortification. They merely enshrine in the Act a principle of which we are all in favour. I hope that the right hon and learned Gentleman will be able to accept the Amendment.

Mr. J. Hudson

I am much obliged to you, Sir Charles, for giving me the opportunity of discussing the point of my Amendment, in page 10, line 46, at the end, to insert: Provided that no person shall be prosecuted under the terms of this section on the ground that he cherishes beliefs or advocates opinions which are opposed to all participation in war or that he has in his possession any book or document which opposes such participation. My Amendment is couched in terms which put the matter in a much more narrow field than that covered by the Amendment of my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). I agree with my hon. Friend's Amendment and if it came to a question of saying whether I would vote for it, then I should vote for it, but I appreciate that it may be adding to the difficulties of the Government at this time by being phrased in such wide terms.

My Amendment is so designed that those who genuinely hold views against all war, whether for political reasons or religious reasons or philosophic reasons—I do not ask which—should not be regarded as conspiring because they have in their possession books and documents, well-marked and indicating an active intention to pass on the ideas which those books and documents represent. Such people should not be prosecuted under the terms of the Bill.

11.0 p.m.

My Amendment is designed directly within those limits. I agree that the terms of my Amendment are not drawn with the legal skill of my hon. Friend, but I hope that somebody on the Front Bench will help me in that matter and that the idea will be acceptable. I appreciate that there is a tendency just now to use all sorts of statements to justify the undermining of general military discipline and the preparations that the Government finds itself compelled to make. I am not engaged in that process. If I have got a book by Emerson or Tolstoy or a passage from the New Testament or from the Book of Discipline of the Society of Friends, all of which are on my bookshelves, all of which are carefully marked—and many of them are passed out into the hands of young men to be passed on again—then I am urging that the possession of such books with well-established views opposing war and participation in war in all its forms should not be held to be illegal and an offence. My Amendment is couched in such terms as to procure that end.

The Attorney-General

I listened with much sympathy to the very sincere and reasoned speech of my hon. Friend the Member for Nelson and Colne (Mr. Silverman). I have great respect for, and am in substantial agreement with, almost everything he said, but think that there really can be no doubt whatever that under the existing law, evidence going only to a man's political beliefs or political party or affiliation or matters of that kind would be quite inadmissible.

I cannot help thinking that to include an express provision in a statute saying that evidence as to a defendant's political beliefs was inadmissible would have perhaps the opposite effect from that which he intends in other branches of the law. It would be said, "It has been necessary in this Act to provide expressly that evidence as to a man's political beliefs must not be received." But in other offences of a quasi-political nature where no such provision existed it would be argued that if evidence as to a man's political beliefs was not admissible, Parliament would never have enacted this proposal in the present Bill. By implication the express exclusion of such evidence in this Bill might suggest that without such exclusion it would be proper to give evidence going merely to a man's political beliefs. I believe that without this Amendment any competent court would at once say that it was inadmissible and not evidence in regard to the commission of such offences as this. I hope, therefore, that my hon. and learned Friend will not press his Amendment on that part of the case. I agree with the substance of it, but I do not think that it would really serve any useful purpose.

With regard to the other part of his Amendment which deals with the mere possession of documents, I agree with him that if, for instance, we were to find a man in possession of a large number of letters addressed and perhaps even stamped to a number of persons who were ex-Z reservists, and any such letters were found addressed to them personally and inciting them not to obey their call-up notices, then those letters and documents in themselves might provide some evidence of the kind of offence and intention which it is intended to hit by this Clause.

But it would do so only to this extent: that they would transfer to the defendant the onus of proving that it was not with intent that he had written these letters and put them into the envelopes, addressed them and stamped them. It would not be conclusive of the matter. It would transfer to the defendant the onus of showing that, although the facts on the face of them were exceedingly suspicious, he had merely done this as part of an exercise in writing, or for some other beneficient reason, and he never dreamt of posting them or using them for anything—

Mr. S. Silverman

I think my right hon. and learned Friend is perhaps not doing full justice to the words of the Amendment. In the case he cited there would be much more than the mere possession of documents. The putting of them into envelopes, the stamping of them and the posting of the envelopes to persons who had been called up or were liable to be called up, would all be an additional factor beyond the mere possession or control of such a document, and would rightly place upon the defendant the onus of proving, if he could, the absence of a criminal intention. But that is not the case aimed at in the Amendment.

The Attorney-General

With great respect to my hon. Friend, I should have thought that case would be covered, because we have to look at the document, whatever it is. It may be a letter addressed to a particular person; it may be in an envelope, and it may be stamped; but we have to look at the document and then consider whether that particular document found in the possession of that particular man suggests an intention to commit the offence. The document may not be one which comes within the scope of this Bill at all; it may be a copy of the "Daily Telegraph", which would not come within the scope of this Bill in the ordinary way.

Mr. Silverman

It might.

The Attorney-General

It might, but not in the ordinary way. One has to see what the document is, and if the document is of a kind calculated to incite and appears to be prepared with a view to its dissemination to other people, that might be a matter throwing the onus of proof on to the defendant. That is a matter which, I think, must be left to the discretion of the courts; it is a matter of degree in each case. I cannot see any case where the mere possession of a document, however suspicious, would be conclusive. The defendant might say, "I collected it as a very interesting curio which I intended to keep and to use in my own campaign against the very people who had prepared it." That would be a matter of degree of evidence for the courts to decide on the facts of each case.

Then there was the speech of my hon. Friend the Member for Ealing, North (Mr. J. Hudson), whose Amendment to which he spoke has not yet been called. That Amendment would qualify the whole of this Clause, and I think that the words we have now agreed should come back—the words "advisedly and maliciously"—would completely cover the object he so well suggested. I know that my hon. Friend would not suggest for a moment that pacifists—even pacifists of the most sincere kind, as we know the hon. Gentleman himself is—would act in a way of which he would approve, in urging people to break the law, and it is only urging people to break the law that is hit at by this Clause. The mere possession of such books on ethics, philosophy, and such like matters as those to which he referred, would, in my view, never constitute an offence.

The real objection to the Amendment is the one I have mentioned again and again. There would be introduced a departure from the 1934 Act, and a kind of duality in legislation which it would be very difficult to operate. There would be the offence under the old Act but there would not be any offence under this Clause. It would be very difficult to know where one was in practice in operating the law. I hope that my hon. Friend will bear in mind the safeguards which exist under this Act—the safeguard of obtaining the Attorney General's consent before any prosecution takes place—and I hope that he will see fit not to press the Amendment.

Mr. H. Macmillan

I am very much relieved at the words which have fallen from the Attorney General because he has removed what for many years has been a matter of worry to many people. He now says that the Act of 1934 completely covers the position. This is, of course, the famous "Mill on Liberty" Clause. Seventeen years ago the right hon. Gentleman the Prime Minister said that no one would ever be able to own Mill on Liberty. I was very much moved then; indeed, I am not sure that I did not abstain because I was so moved. But there have been no long queues of Mill addicts, and I just would like to say that we on this side of the Committee feel that it is some satisfaction to know that everything said on that occasion by the Ministers who now sit on the Front Bench has proved to be completely false.

Mr. Grimond

It appears that parties in office are subject to temptations which they do not suffer from so much when out of office. Luckily, my party has a spotless record, and is not likely to lay itself open to the same charge.

I think that this is a particularly important point, and I do not entirely accept the view that because the Act of 1934 said something therefore that must be the Bible all the time. I quite see the legal difficulties, but we are dealing here with a Bill which is valid for one year, and has a very limited application. I do not think it is the complete answer even if one cuts down the powers under this section, to say that they still exist under a previous Act.

The first element is the intent, and I admit the Clause has been improved by the addition of the words "maliciously and advisedly." The second is the need to prove the document is in the man's possession, and that it is of a certain nature. I accept the Attorney-General's argument on the second half of the Amendment in the name of the hon. Member for Nelson and Colne (Mr. S. Silverman)—the half dealing with political liberty—but there is something in the hon. Gentleman's general point that a distinct onus should be put on the prosecution when dealing with intent; or else they should prove that the document is of a nature which is clearly designed to procure the offence stated. We might achieve his object by limiting the Clause to such documents. Then we should escape the difficulties of those wanting to read Mill on Liberty. The general point made by the hon. Gentleman remains. although I am prepared to believe that the actual wording is not particularly satisfactory from the legal point of view.

Mr. Fenner Brockway

I am amazed by the hon. Gentleman's claim that his party's record is spotless in this matter. It is a new virtue of being in a minority, but I would remind him that the Act of 1934 was not the first Measure which imposed these penalties. There are at least three hon. Gentlemen on these benches who served terms of imprisonment under an Act introduced by a Liberal Govt. of 1914 onwards, which was then known as D.O.R.A. The hon. Gentleman's party, therefore, is responsible for the precedent. both for the Act of 1934 and those which will follow.

11.15 p.m.

Mr. Grimond

The hon. Gentleman will acquit me of offences which occurred before I was born, or in the opening years of my life.

Mr. Brockway

I have greatly appreciated the contributions that the Attorney-General has made to this debate. My only regret is that what is said here is not the law as it is interpreted in the country, and that while he may be Attorney-General now, and may have responsibility for intiating proceedings in the Higher Courts, he will not be Attorney-General for ever; and that if the change is to the other side we shall have a very much worse Attorney-General.

As I listened to him speaking I also had to remember that he will not be the judge and jury that will perhaps try the cases which are brought under this law. I particularly noted his statement that it would not be within the terms of the law to judge a man according to his political beliefs. I am quite prepared to believe that that would not be the law, but, first as a journalist attending cases when court proceedings had been carried out, and, later, as one who is interested politically, I have seen and heard juries that were obviously prejudiced by reference to the political beliefs of those who were before the court; and it may be true of magistrates as well. Therefore, I am not content with the principles that have been laid down by the Attorney-General from the Front Opposition Bench. [HON. MEMBERS: "Withdraw."] For the sake of HANSARD I will withdraw it and refer instead to the Government Front Bench.

My major point is that both the Attorney General and the hon. and learned Member for Norwich, South (Mr. H. Strauss) have emphasised that the introduction of the words "maliciously and advisedly" have made very little difference to the actual content of this clause. If that is the fact, the dangers which we saw in this Clause, on Second Reading, remain tonight. The possibility of this Clause being used to suppress political opinion, philosophical belief, social convictions, and literature which one may have on one's shelves remains as true today as it was on Second reading.

Because of that I urge very strongly indeed that the Attorney General should not be satisfied with laying down what, in his view, is the law, but should accept at least one Amendment to the Clause that will make it clear to any judge and jury who have to deal with this Measure.

Mr. Leslie Hale

I want as briefly as I can to press the Attorney General on this matter. The right hon. Member for Bromley (Mr. H. Macmillan), has referred, perfectly fairly, to Mill on Liberty and the observations made on that subject on a previous occasion. But whether or not it be an offence to own Mill, it almost seems an offence to read him today. There is a good deal passing out from our public life for which Mill stood and which he thought.

On the question of political views, any Member of the Committee who looks back over the last two or three weeks will find a hardening and an alteration of view. Nowadays, every time I suggest that the 170 million people who live in the U.S.S.R. have a point of view in international affairs I get a post saying I am a Communist, fellow traveller, and so on. What must be the fate of those in the Soviet Union who suggest there is a British point of view that ought to be considered? Unless people on both sides say that at some time, the condition of the world will get worse. I say this to my right hon. and learned Friend—I think he is the same age as I am, but he has worn better. I was practising in 1926 in a mining area during the long and tragic lock-out that embittered industrial relations there. I remember the dreadful regulations that were brought in and the prosecutions that took place. In many places, to say that a man was a Socialist was virtually all the evidence needed for a conviction, especially if it was coupled with activity of any kind.

Anyone who cares to do so can turn up the reports. For people to say that a man was in the habit of organising working-class demonstrations was enough to ensure that he was well on the way to a conviction. A man who was secretary of a trade union and a member of the Labour Party was regarded almost as a criminal—[ interruption.] Let us be serious about this. Few Members on this side have protested more than I have about the atrocities committed in Central Europe. Today, if a man is described as a Communist, in some courts he is well on the way to a conviction. [An HON. MEMBER: "For inciting strikes."] The Attorney-General has been so good over this, that I do not want to press the matter unduly.

Let me put a specific and reasonable point. I am trying, with two or three colleagues, to organise an assembly for peace to meet in India, to be composed of people from all over the world, if they will come. I imagine that I shall fail. I have embarked on ambitious projects before which have failed, but I think this is worth trying. Suppose that assembly, representing all peoples, made a call to the world to lay down arms and asked the delegates to begin propaganda at once in all the nations for the laying down of arms and for the determination of all peoples that they do not intend to live in a welter of blood. What am I to do when I bring these documents back and pass them round in this country? Will it be possible for someone to say against me, "This man is not merely a Labour M.P., but considers himself a Socialist"—almost a lost creed, but one that connotes in certain legal circles something of contempt and distrust? What is to be the position if we try to say to our people, "Let us get together and put over the policy we put forward some years ago"? I do not want to emphasise this, to pin-point it, but there were public meetings before the war at which we advocated a policy of refusing to fight again.

Sir Herbert Williams (Croydon, East)

You were against rearming.

Mr. Hale

We were coming out with that line. No one knows better than the right hon. and learned Gentleman—who has approached this matter from a genuine belief in political liberty—that this Clause will render people liable to conviction in circumstances which he would regret. On one argument I can meet him at once. If he says that the insertion of this Amendment would not be desirable because it is not in the previous Acts, it could be redrafted between now and the next stage. There need not be any conflict of that kind. I suggest that the points he put were strong ones, and I know it is difficult: I know there are points for both sides, but I do hope my right hon. and learned Friend will, between now and the Report stage, try to draft something which will meet the manifest views of the majority of the Committee.

Mr. S. Silverman

Before the Committee concludes this matter I would like to reinforce what my hon. Friend has just said. I think that my right hon. and learned Friend made only one valid point against the acceptance of this Amendment, and that was relating to the. conflict produced with previous law around and about the same subject. As my hon. Friend has said, that is the danger. It is quite easy, by suitable drafting, to meet that danger, and I am sure that the Attorney-General appreciates that it is a point which can be disposed of by suitable drafting. That being so, is there any reason why we should not dispose of it and strike this blow for the preservation al liberties at this time?

It is agreed that there is nothing in the Amendment which weakens in any way the authority of the law we are intending to pass: there is nothing that weakens the criminal law on the subject, as it was before the Bill was introduced: there is nothing in it, which in principle any Member of this Committee would oppose. That being so, and if the only danger is that we may be told in the courts, that we had deliberately left it out elsewhere, that could be covered by proper drafting. I am sure the Attorney-General has appreciated the discussion, indeed. he said he did. There is no danger to be feared here, nothing to be lost, no mischief to be encountered. All we propose is the raising of one further bastion against the onrushing tide which may engulf our own citizens.

Why should we not raise it. We are raising the physical bastions. No one says "Do not." Those of us who are against re-armament at this time, or on this scale, may be mistaken about it, but we sincerely believe in it. The majority of the Committee is not of our view, and has decided, and will have its way, to raise the physical bastions as they want them raised; we hope they may succeed in what they have in mind. We may be wrong in our fears, our distrusts and our anxieties, but if they are having their way about the physical bastions why should we hesitate to raise the moral bastions to protect our liberties?

Is there not an insidious danger of a very different kind from the subversive element which has engaged hon. Gentlemen from time to time; a danger that in seeking to protect ourselves from something we sacrifice too much of those things we intend to protect, and find, in the end, that we have given it up altogether by trying to protect it from outside? It is a danger which we incurred in the 1934 Act, and the right hon. Gentleman who rejoiced that in 17 years the dangers had been found not to be serious, quite seriously rejoiced that the dangers did not develop. He appreciates himself, as he appreciated then, that in 1934 the fears that those dangers were there were real, and were not unreasonable. But, here again, we have something which takes us a little further down the slope. We say that if there is no harm in these words, if they do not affect anything which one does not want to see affected, and if the only danger is one which can be guarded against by simply redrafting the Amendment, then let us adopt the Amendment and see that our liberties are in this way preserved.

11.30 p.m.

Mr. N. Macpherson

May I put this point to the Committee? It seems to me that the Committee is somewhat losing its sense of proportion in the arguments which have been advanced on this matter, and that if these arguments go out as representing in any way the background to this matter it would, I think, cause an entirely false impression in the country. I wonder if the right hon. and learned Gentleman would help me, at any rate, on this particular point.

When, in this Clause, we are talking about "documents inciting," surely this means documents specifically inciting to a specific offence, and not philosophic documents or religious documents in general. It seems to me that this point has not, so far, been brought out during the debate. If that is so, if a particular document inciting to a particular offence were in the hands of someone, the possession of one single document might not, perhaps, indicate very much. But the possession of a great number of the same documents might be evidence of a certain intention.

I do not know whether that is a correct view. I would prefer, if I may say so, that the Attorney-General should answer that point. But I hope it will not be interpreted in the country that the mere possession of philosophic or religious documents, or even political documents, alone, will be in any way affected by this Clause. I hope that the Attorney-General will tell us so.

The Attorney-General

I had hoped that I had done so in answer to the hon. Member for Ealing, North (Mr. J. Hudson). I do not know if the hon. Member for Dumfries (Mr. N. Macpherson) was present at that time. I merely repeat that I am quite sure that the possession of philosophic, religious or ethical documents would not in itself constitute an offence. The document must have something in its nature clearly directed to encouraging people, and persuading people, to break the law. The philosophic, or religious documents to which the hon. Member has referred, would not come within that category.

As to the persuasive speech of the hon. Member for Nelson and Colne (Mr. S. Silverman), I shall read it tomorrow in the OFFICIAL REPORT, and consider it. But I cannot hold out much hope that I shall agree to the proposed Amendment. While I agree with a great deal which the hon. Member said, I am not at all sure that the Amendment really would achieve what he desires, and that it would not go a great deal further than even he would wish to suggest. I am confident that mere evidence that a man was a Communist, or a Conservative, standing alone, has nothing to do with the case. Of course, if one were able to prove that a man was a member of an association, one of the objects of which was breaking the law, that would be another matter.

As my hon. Friend would at once agree —I do not know whether the Amendment would exclude evidence of that kind—if one can prove that a man is a member of an illegal association, then one could say that he is a party to a conspiracy to do the thing which he was charged with doing. It would not be right to exclude that kind of evidence under the cloak that it was part of a man's political belief. But the mere evidence of political belief alone, with no evidence on what the consequences of that belief were—that they were illegal and that the members of the party shared them—would not be admissible in evidence. I hope that my hon. Friend will not press his Amendment.

Amendment negatived.

Mr. S. Silverman

I beg to move, in page 9, line 16, after "time," to insert: during the hours of daylight. This is a reference to the power of search, which is a very wide power. It gives power to search in the absence of the owner for whatever things are being looked for, or which may be found in the premises. It provides that the officer in charge of police shall have power to break in if he can enter by no other means. These are very wide powers indeed, and a great violation of the common law, but all I ask is that these powers shall not be exercised by night.

I only ask that the police shall not arrive at the homes of peaceful citizens, even although those citizens are supposed to harbour dangerous documents, during the hours of darkness, but during the hours of daylight. That concession I think the Executive might find itself able to make without giving away anything very important—[ Interruption.] I thought I heard somebody say "Why?" If I am correct, I will only say that I am not going to waste the time of the Committee at this hour on words to explain something which is a self-evident proposition; and that laughter is really unnecessary.

Brigadier Prior-Palmer

I only wanted to ask the hon. Gentleman if he could give the reason why; that is all.

Mr. Silverman

I should have thought that it was self-evident, but if there really are hon. Members to whom it is not, I shall gladly comply with the request. Searching a citizen's house is an unpleasant thing. It is a thing always forbidden by what is known as our way of life—which is the common law. We have regard for the time-honoured phrase that an Englishman's home is his castle—[ Interruption.] Hon. Members ask for an answer, and they must not be impatient at my giving it. We mean by that expression that his house is inviolable, not merely to burglars, or trespassers, but to policemen and the Executive except under the due authority of the law. But this right of search we have certainly given, and I have heard hon. Members opposite complain continuously during the last five or six years about the increasing powers of search, of the increasing number of officials who have that right, and of the increasing variety of reasons for which the Executive feels entitled to give it.

In the recollection of all those speeches and denunciations by hon. Members opposite, I should have thought that I was entitled to assume that my reason was self-evident.

Mr. Silverman

I will give way again in a moment, but I want to finish by say- ink that if a thing is unpleasant, and should be cut down as much as is possible during the day-time, when people are about their rightful duties and their vocations, then it must surely be more unpleasant by night.

Brigadier Prior-Palmer

Precisely what I had hoped the hon. Gentleman would say is this—why he has supported legislation over the last six years which has given ever greater powers of search?

Mr. Silverman

If I may, without putting myself out of order in discussing matters not now before the Committee, I would point out to the hon. and gallant Member that these powers of search have been gradually increasing over more than half-a-century but that the number of increases in the past five or six years is really very small. We really cannot debate it, but I gave the hon. and gallant Member the answer which was given only a few weeks ago, to a Question in which numbers were specifically asked for by an hon. Member opposite, by, I think, the Attorney-General himself or by the Leader of the House.

Let us agree upon this, as I think we shall, that the giving of additional powers of search ought to be looked at by the House of Commons with a very jealous eye. We might very well, in a particular case, inquire whether the powers in that case ought to be given or not. I am not asking the Committee to say that powers of search under this Clause are wrong. I can conceive that if the possession of documents with a certain intention is an offence, one cannot refuse to the Executive the right to look for the commission of that offence. All I am saying is that we ought to circumscribe it by reasonable conditions, and it is not an unreasonable condition, in these circumstances, to say that the search should be effected in day-time and not at night-time.

We are not dealing in these matters with violent criminals or murderers. We are dealing with people who are actuated, maybe wrongly or mischievously, with things of the mind. We are dealing with documents, words, ideals, and I should, have thought that it would be quite enough to give the Executive power to make these searches exactly as the Clause provides, but to limit the time to the hours of daylight.

The Attorney-General

The power to search which arises under this Bill, is, as the hon. Member knows, only exercisable on the warrant of a High Court judge. My experience of the matter is that High Court judges are usually very averse to granting warrants and they only have the power to do so on a sworn information, which sets out the grounds upon which there is reasonable cause for supposing that evidence, or documents, or whatever it may be, are to be found on the premises which it is proposed to search.

A search is certainly a very unpleasant thing at any time, and I agree at once with my hon. Friend that it is particularly unpleasant at night-time. Usually searches are conducted in day-light. I view with as much disfavour as I am sure my hon. Friend does, what I believe in Eastern Europe is called the "Two a.m. knock," and certainly these night visitations by the police are sometimes of a most sinister and dangerous nature in countries where the police force is not subject to the control of Parliament, and there is no minister who may be answerable to Parliament for their actions, and no judge who subsequently may animadvert about the circumstances in which the search has been conducted.

Under many statutes searches may be conducted by day or night. Under some, it is true, there are restrictions on the search by night, but under many statutes they may be conducted by day or by night, and I have had experience myself, again as I am sure the hon. Member has, in which judges or magistrates have made adverse comments about the manner in which a search in a particular case has been conducted, and the police have learnt better next time.

11.45 pm.

I would say that, in general, under this Bill searches will be conducted by day, but I should not like to exclude the possibility that it may be necessary in certain circumstances to conduct the search at night—perhaps because it is only at night that the particular individual is likely to be in the premises, perhaps because there is a danger that the fact that application is being made for a search warrant has leaked out and the documents would be destroyed before the night had passed. We must remember that although we are not dealing with murderers and criminals of that kind under this Bill, we may some- times be dealing with traitors, as an hon. Member opposite quite fairly said. Sometimes this right may have to be exercised in cases of the utmost gravity. I hope that may not be very frequent. but sometimes it may be so, and in those cases I should not like the hands of the police to be tied to acting only in daylight. I hope my hon. Friend will not press the Amendment.

Mr. Silverman

Surely my right hon. and learned Friend will agree that in cases of the gravity to which he referred in the latter part of his speech it would be in the highest degree unlikely that a more important offence was not being committed than the offence aimed at under this Bill, which is, after all, of a very limited kind. All we are dealing with here is documents which may incite persons who may have to perform 15 days' camp duty in one limited year, not to do that duty. That is the only thing we are dealing with, and all these grave misdemeanours and high crimes which the right hon. and learned Gentleman mentioned in the latter part of his speach have nothing to do with the Bill at all. If crimes of another kind are contemplated, then there are rights of search other than this right which is being provided under the Bill.

My Amendment does not say that all searches shall be carried out only in daylight. It applies only to the particular powers of search in the Bill; the offences may be serious enough, they may be mischievous enough, but they cannot be of such a grave character as to justify the kind of 2 a.m. search to which my right hon. and learned Friend referred.

I have heard so much objection from hon. Members opposite to powers of entry and powers of search in circumstances where the law could not be enforced without them, that I hope they will sympathise with the objects of this Amendment. Let us for once overcome party barriers and, where we agree on the principle of the thing, let us see whether we cannot combine together to get it carried. Let us see how serious and sincere are the Opposition in their constant agitation about the extent of the right of search. Let them join me in this Amendment, which does not prevent the Executive for having all the necessary powers but says that the right of search should be used in these circumstances only in daylight.

The Attorney-General

I am speaking off the book, but I think there is no right of search in treason. Treason was a very old offence created by statute—

The Attorney-General

Well, it was created by the common law and declared in the statute—the hon. Gentleman is so pedantic—many hundreds of years ago when documents were not much used for the propagation of offences. I do not think there is any right of search in treason at all.

Mr. Silverman

I do not want to be persistent about this, but if the Attorney-General is right in saying that there is no right of search in treason, then let me say two things to him. First, this Clause will not give him such a right in cases of treason and, secondly, if he does not have that power in cases of treason, why does he want it here?

Mr. Pickthorn

I am loath to intervene in this private row and you are out of order—[ Interruption]. Sir Charles, the last thing I would suggest is that you were out of order. I was just using "shorthand" language for a moment and I meant that the hon. Gentleman below the Bar was out of order. The Attorney-General comes here to give us the truth on the law; he should not say that the crime of treason was created by statute. It is the most preposterous nonsense I have ever heard in this House, and that is saying a good deal. It would be more nearly true to say that the statute was created out of the law of treason, though it would take me too long to explain to the Attorney-General the process by which it was done.

Amendment negatived.

Mr. MacColl

I beg to move in page 9, line 21, to leave out, "such an offence as aforesaid," and to insert "the aforesaid offence".

Unlike the previous Amendment on the subsection, my Amendment deals with what the police may do once they get into the house and not with the manner in which they get in. Like the hon. Member for Carlton (Mr. Pickthorn), I shall not detain the Committee with a disquisition on constitutional history, but I think it is broadly true to say that since the time of Lord Camden the Executive has always been trying to extend the right of search. There was the notorious case of the Criminal Justice Administration Bill of 1925, when at the request of the Director of Prosecutions, a Clause was introduced to give general guidance on all criminal offences for this kind of search. It was rejected and withdrawn because of the strongly-expressed views of both sides of what was then a strongly Conservative House.

Since then we have unfortunately had the 1934 Act which has been used as a precedent for this subsection; and it really illustrates the point that once you lose the battle for civil liberty, you have lost it for a very long time. Now we are in a position where it will be possible in future debates to quote the views of a brilliant Attorney-General from this side of the House in support of some of the unfortunate features of the right of search.

The object of my Amendment is to limit the police so that they can only take evidence which applies to the particular offence of which they have knowledge and of which they have sworn they have knowledge. They may not, once in the house, indulge in a fishing expedition turning out a person's private papers and collecting evidence not only against that person, for possibly some quite different offences; they may not collect evidence against any person who is not involved in the matter at all. What I am suggesting is that instead of the documents which are seized being used as evidence on the commission of different offences, they should only be evidence of the offence that has led to the search.

The Attorney-General

As I understand the Amendment, it would restrict the latter part of the Clause to documents connected with a particular offence, which my hon. Friend assumes would have been specifically referred to in the information upon which the search warrant was granted, and he thinks the Clause would be wide enough to permit the seizure of any documents covering any offence not under this Clause. I will look into that point. I am not sure that I am very much impressed by it but I will look into it between now and the Report stage, without making any promise that I shall introduce an Amendment. I hope my hon. Friend will not press this Amendment now. I cannot accept it now, but I can assure my hon. Friend that the wording of the Clause as drafted would not permit the seizure of any documents relating to any different offence. It permits the seizure only of documents relating to such an offence, namely an offence under this Clause.

Mr. MacColl

In view of what my right hon. and learned Friend has said, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Grimond

I beg to move, in page 9, line 25, to leave out "three months" and to insert "one month."

A great many voices have been raised this evening in favour of limiting this sort of Clause as far as possible, and again I say that we have to bear in mind that this Bill is a very limited Bill; it will, we hope, last for one year only and apply to a certain number of people only. In those circumstances, it seems to me that we ought to take any opportunity we can, not of following and extending past precedents in this field, as usually happens, but of following them to a limited extent only and cutting them down as far as we can.

This Amendment is designed to reduce the period of delay which may have taken place between the commission of an offence under this paragraph and the laying of the information. If accepted it would give the police power to act only in a case in which the offence is alleged to have been committed one month and not three months prior to the laying of the information. I stress that this Bill is to last only one year. The offences must be limited to that period; they can only be aimed at the people clearly set out in the Table to Clause 1 and at no one else, and we have that assurance from the learned Attorney-General. Surely this is a case in which we want to reduce this sort of power to a minimum, and I suggest that this very limited Amendment might be accepted.

The Attorney-General

I hope the hon. Gentleman will not press this Amendment, which again would involve a departure from the provisions of the 1934 Act; it would cause a difficulty and complication in this matter. He will appreciate that in the course of police investigations dealing first with the pawns, the puppets and the dupes who have been used to fire off the ammunition, it may become apparent who is the real villain at the root of the trouble, the man who supplied the ammunition and that he is to be found in a particular place, and that in that place the origination of the offence may be discovered. To restrict the Clause in the way the hon. Gentleman suggests would, I think, make it more difficult for the police to get the real originators of some of these offences.

Amendment negatived.

Mr. Emrys Roberts

I beg to move, in page 10, line 6, to leave out "five" and to insert "two."

The Chairman

I think it would be for the convenience of the Committee to discuss the next two Amendments at the same time.

Mr. Roberts

I agree, Major Milner. If I understand the Attorney-General aright, he has already agreed to the Amendment I now move, and to the two subsequent Amendments. They are designed to bring the penalties in the Bill into line with the Act of 1934.

12 m.

The Attorney-General

I did indicate earlier that I should be prepared to accept these three Amendments which restore the penalties in the Act of 1934, and I am glad to accept them now.

Amendment agreed to.

Further Amendments made.

In page 10, line 8, to leave out "six." and to insert "four."

In line 8, to leave out "one hundred," and to insert "twenty."—[Mr. Emrys Roberts.]

Mr. Leslie Hale

I beg to move, in page 10, line 13, to leave out subsection (8).

I have no desire to waste the time of the Committee at this time of night, and I do not propose to press this matter. It covers an important point of general application, and I can confine my remarks to one or two sentences. I recognise that there are precedents for this, but I suggest it is one thing, as in one reported case, for the tribunal to say to the speaker before them, "Who are you?", and for him to say: "I am the Attorney-General," and then for the proceedings to be taken in that court; but it is another thing, under this Clause, for the Attorney-General to say, "I consulted myself, and I have decided that this man should not be tried by this court, but should be tried by another court."

There are precedents for this, but it is a little undesirable. The old procedure was to bring a man before a court of summary jurisdiction and to try him with his consent and the consent of the court, or to transfer the case, if it was a more serious matter. There is an additional serious point connected with this. In general, there is a time limit for bringing proceedings summarily, as against charges on indictment. When a matter is being considered by the Department the time for bringing proceedings summarily has run out, and then they have to be. brought to another court with cares of more gravity. I realise that this has no specific value in this discussion, and I shall be prepared to withdraw the Amendment, by leave of the Committee.

The Attorney-General

As my hon. Friend appreciates, there is a general power approved so recently as 1948 by Parliament enabling the Director of Public Prosecutions to request that cases otherwise triable summarily, should not be so tried, but go for trial on indictment. This type of offence is included within the general power.

Amendment, by leave, withdrawn

The Chairman

Before I call the next Amendment, may I say that I understand that it was agreed by my predecessor that the Amendment to page 10, line 16, in the name of the hon. Member for Nelson and Colne (Mr. S. Silverman) could be moved to enable it to be put to a Division only, but that it should not be discussed.

[In page 10, line 16, at end insert: (9) Nothing in this section or elsewhere in this Act shall render any person liable to prosecution or any document liable to seizure or destruction only because such person or document maintains, expresses or endeavours to persuade others to maintain or express any political or religious faith, creed or opinion nor shall the maintenance or expression of any such creed or opinion be held by any court to he evidence of any intent to commit any offence under this Act.]

Mr. S. Silverman

I pointed out at the time the other Amendment was discussed—and the suggestion was made that the two might be discussed together —that the point here was a different one, although the principle in each was similar, and I should like to move this Amendment without repeating the arguments adduced then.

The Chairman

I understood that the arrangement was that the Chair was willing to call this Amendment for a Division but not to have a discussion. I am willing to call it if the hon. Gentleman is desirous of putting it to a division.

Mr. Silverman

I do not want at this time of night to press anything unduly. But Sir Charles MacAndrew suggested when he was in the Chair that we should discuss them together, and when I pointed out that that was not really suitable he, at any rate by implication, accepted my view. There was not really any bargain or arrangement about it.

The Chairman

I am sorry. If the hon. Gentleman desires he must put the Amendment down on Report. I do not select the Amendments.

Mr. Silverman

On a point of order. I do not want to repeat the debate in any way. Of course, when you have had a debate, you have had it. All I wish to do is to show in what way this differs from the Amendment which we have already discussed. If I may do that, I shall be very grateful; otherwise I must put it down on Report stage.

The Chairman

I am not very willing to accede to the hon. Gentleman's request. I understand he was given an opportunity to discuss it along with a similar Amendment. I hope he will put it down on Report.

Motion made, and Question proposed. "That the Clause, as amended, stand part of the Bill."

Colonel Gomme-Duncan (Perth and East Perthshire)

We are all agreed that in the circumstances of today it is very necessary to have this Clause, but I am glad that the Attorney-General has resisted some of the Amendments that have been brought forward, just as I am glad that he has accepted some others. Hon. Members on the other side, particularly the hon. Member for Nelson and Colne (Mr. S. Silverman) and one or two others, are entirely under a misapprehension—at least, I hope that is what it is—in thinking that the people against whom this Clause is aimed are just another political party. They are nothing of the kind.

It is the Communists we are up against, and they are not another political party of the ordinary kind but a dangerous foreign conspiracy which is world wide. Therefore, unfortunately, we have to take rather more stringent action than if we were dealing with ordinary political parties of any colour that we have known hitherto in this country. That should make this Clause more acceptable, even to him and others who believe it goes too far. We are dealing with a menace quite unlike anything else the law has had to deal with.

Mr. Bing (Hornchurch)

Before we pass from this Clause, perhaps I may say, on behalf of other members who like myself have not hitherto intervened, how much we appreciate the concessions given by the Attorney-General. Naturally until now we have been concerned with people whom the other side consider to be potential traitors. They were the people, they suggested, with whom this Clause was designed to deal. Of course, there are different definitions of who is a traitor which I shall refer to later. But it is very necessary that on this Clause we should safeguard the rights of people who are volunteers, and we should so carefully frame the Clause as to ensure that we are not doing any harm to volunteers who, having come into the Services, should not be placed at a disadvantage.

Between this Clause and the 1934 Act there is one most important difference: the Attorney-General is substituted for the Director of Public Prosecutions. That is a most desirable change because it does give us some direct responsibility here. But it involves us in a further difficulty. When we come to Northern Ireland we are compelled to substitute the Attorney-General of Northern Ireland for the Attorney-General here. That, of course, does away with the whole question of responsibility, for he is not responsible to this House at all

I am going to suggest a number of cogent reasons why the Government ought to reconsider this procedural part of this Clause and why there ought to be some safeguard. I should have thought one of the first reasons would be that this Bill does not apply to Northern Ireland, because it is not proposed to call up any Z reservists from Northern Ireland. Therefore, it would seem undesirable that the Attorney-General in Northern Ireland should be given further powers to institute proceedings.

There is this important difference between the two offices of Attorney-General. I do not want to say anything personal about the Northern Ireland Attorney-General, who has followed very consistently the policy of the Government of which he is a member. What I say is not based on any personalities in reference to any holder of that office, but it is the case that the conception of the office of Attorney-General in Northern Ireland is quite different from the conception of the office here. I am sure it is equally true of the hon. Gentlemen opposite that they would not consider launching prosecutions in order to maintain their political party in power. They would not consider that the object of criminal legislation is to punish somebody for doing such a thing as oppose one of their candidates at a selection conference, but that is exactly the use that was made of similar legislation in Northern Ireland, and an unfortunate person who opposed a party nominee at a selection conference was imprisoned.

In Northern Ireland there is a different approach to the whole idea of the office of Attorney-General. May I give one quotation, not from the present Attorney-General, because I do not want to be personal, but from a former Attorney-General who now sits as a High Court Judge in Northern Ireland. He said in the course of a reply to a suggestion thrown out by an hon. Gentleman opposite that the legislation giving power to imprison anyone indefinitely without trial should be considered—

Sir Ronald Ross (Londonderry)

Shall I be able to go into the whole constitution of Northern Ireland and the special powers of Ministers, Major Milner?

The Chairman

I am listening very carefully to the hon. and learned Gentleman. There is, of course, a distinct reference in Clause 6, subsection (11) to the Attorney-General in Northern Ireland. I am bound, therefore, to admit that the matter is one for debate.

Mr. Bing

I do not want to argue the propriety of a policy. There is a different form of approach and a different sort of office. The whole conception is different, and therefore when we are giving powers there, we are not giving them to somebody equivalent to the Attorney-General here, but to a person who uses his office for certain political aims.

Sir R. Ross

Nonsense!

Mr. Bing

The Attorney-General in Northern Ireland said: I say the abnormal times have not yet passed away, and I have not the slightest hope or expectation that they will ever pass away until there is a complete change on the part of a section of this population in their attitude towards this Government…

The Chairman

I doubt whether the hon. and learned Gentleman is in order now. He is entitled to put forward certain arguments about the Attorney-General but they must have some relation to the Bill and not the application which the hon. Gentleman appears to be giving them.

Mr. Bing

My argument is this: and I am sorry it is not quite clear. The Attorney-General in Northern Ireland took the view that he should so interpret his powers as to make use of them for the purpose of perpetuating the existence of the Government. Obviously my right hon. and learned Friend does not use his powers in this way, and I make no point against the hon. Gentleman opposite. There is a distinctly different approach, but it is late and I do not want to pursue this point indefinitely.

12.15 a.m.

I shall now turn to one further point. The Attorney-General there, unlike here, works through an organisation known as Crown solicitors. In each county there is a Crown solicitor, who is a person who would advise on a prosecution. These are highly political figures, and I shall just read an extract from a speech by one of them.

The Chairman

I am sorry but I cannot allow the hon. and learned Gentleman to do that. That question cannot possibly arise here.

Mr. Bing

I bow to your Ruling, but it seems to me that if a Crown solicitor, who is maintained in that position by the Attorney-General of Northern Ireland, says he intends to use his position for the purposes of using discrimination I think it is valid. I come to the second point. The Attorney-General of Northern Ireland is subject to all sorts and types of pressure to which the Attorney-General here is not. In Northern Ireland he yields, and often admits he yields, to outside pressure or outside organisations. When asked why he is engaged in some or other activity it is usual for him to say, "I have done so, because if I did not do it there would be some extra-legal organisation which would take the law into its own hands."

Some time ago we had the good fortune to have in the House for a period a gentleman who was persuaded by some hon. Members opposite that he was a member—

Mr. Joynson-Hicks (Chichester)

On a point of order. I submit that the hon. and learned Gentleman is out of order. He is making references to matters which arose outside the House, and which cannot conceivably have had any connection with the Bill.

Mr. Bing

I am sorry if the trend of the argument was not immediately apparent. The Attorney-General of Northern Ireland is responsible not to this House but to somewhere else, and before we give him the power we ought to see whether proper or improper pressure is being applied to him in that other place. I shall read a quotation from this gentleman who was a clergyman, which he put freely in defence of the Attorney-General. He said: I do not hesitate to tell the hon. Member for Falls (Mr. Diamond), no matter what he may think, that we would have obliged him with every hit of trouble he had been looking for. The Minister was perfectly right in suppressing that demonstration, for if he had not done so we would. Those are not the wild words of someone who does not consider what he is saying but are the views of one who was ordained 15 years ago and was speaking with the full responsibility of his holy office.

The Chairman

I think the hon. and learned Gentleman has been given a good deal of latitude, and he must not now take further advantage of it. If he has any remarks relevant to the Clause I will call him: otherwise I hope he will resume his seat.

Mr. Bing

Perhaps I could make the point shortly. It is that if the Attorney-General of Northern Ireland did give way to pressure from an outside organisation, what is the proof that he would not prosecute somebody under this Act because of that person's religion or something else?

Mr. Bing

It is all very well for the hon. Baronet to shout "Shame." What was the definition of "traitor" given in his constituency when he was elected? It was given by the hon. Member for West Belfast, who I am sorry is not in his place, as I had given him notice that I was going to raise the point. The hon. Member then said a traitor is someone who gives a job or a house to a Roman Catholic.

The Chairman

Order. The hon. and learned Gentleman must resume his seat. I do not think the majority of his remarks are relevant. If he has relevant remarks to address to me I shall be prepared to listen, but I cannot listen to irrelevant matters which may also anticipate proceedings tomorrow.

Mr. Bing

That is the last thing one wishes to do. I hope that we shall take ample opportunity to discuss that tomorrow. The point which I was trying to make quite apart from this traitorous act, and was that one ought not perhaps to introduce into the hands of someone subject to this sort of pressure this sort of power. I think I can be very short and finish the matter in this sense: that the Attorney-General of Northern Ireland is subject to take proceedings against people through all sorts of improper pressure. In those circumstances, we could not leave the matter in his hands. There is a great number of ex-Service men who happen to differ in religion from the majority.

The Chairman

That being so, the hon. and learned Member has made his case. He does not need to go into further details, as apparently he is doing. He has made his point and I suggest that that is sufficient.

Mr. Snow (Lichfield and Tamworth)

That seems a most improper Ruling.

The Chairman

I understood the hon. Member to make a comment on a Ruling I have given. I must ask him to withdraw that remark.

Mr. Snow

I will withdraw, Major Milner, but I am bound to say, with due respect, that you are being very harsh on my hon. Friend.

The Chairman

I must ask the hon. Member to withdraw that too.

Mr. Snow

I do withdraw.

The Chairman

I said what I believe to be in accordance with precedent, that remarks made in this House, or in Committee, must be relevant. I think that the hon. and learned Gentleman has passed beyond that in the remarks which he made.

Mr. Snow

On your instructions Major Milner, I withdraw my remark.

Sir R. Ross

I have listened with disgust to the remarks of the hon. and learned Member for Hornchurch (Mr. Bing), who has again given an example of his vindictive spirit towards Northern Ireland, which has the great misfortune to be the land of his birth. He has made attacks upon the Attorney-General of Northern Ireland, apparently upon all Attorney-Generals of Northern Ireland, heedless of the fact that the last Attorney-General of Northern Ireland was made a High Court Judge by the Labour Government and so, presumably, was not one of those liable to all sorts of influences.

The Chairman

The hon. Member is now also irrelovant, and should not enter into these outside matters.

Sir R. Ross

A series of revolting attacks has been made upon the Attorney-General of Northern Ireland, who is accused of carrying on prosecutions in the King's name because of religious prejudice. That is a thing I cannot pass over without protest. I have seldom had a more shaming experience than to listen to that sort of thing in this House. The hon. and learned Member for Hornchurch has lacked the courage to put down an Amendment to achieve the aim which was apparent from his speech.

Mr. Bing

If the hon. Member will allow me, I should like to say that there is an Amendment on the Paper. It did not happen to be called.

Sir R. Ross

It is curious that it is not on the Paper if the hon. and learned Member had put down an Amendment.

Hon. Members

Where is it?

Mr. Bing

rose

Mr. Emrys Hughes

My Amendment dealt with Northern Ireland, and I asked the hon. and learned Member for Horn-church (Mr. Bing) to support it.

Sir R. Ross

Now we see the ally. The Clause we are discussing clearly states that no prosecution in Northern Ireland shall take place without the consent of the Attorney-General for Northern Ireland. The senior Law Officer should protect people who might be unjustly accused, and the same protection is given here for Northern Ireland as is given for England and Wales. I think that to try to deprive people of that protection is a very unwise and stupid thing. The Clause as it stands should form part of the Bill. We all know, of course, that the interventions we have heard were made merely to use this debate as a platform for the carrying on of the usual vendetta with whch the hon. and learned Member for Hornchurch (Mr. Bing) has distinguished himself for so many months.

Mr. S. Silverman

Since about nine o'clock last night we have been discussing Clause 6, that being the Clause to which most attention was devoted on the Second Reading as the only one which had any underlying or far-reaching political importance; and then only if read in a particular way. A number of us put down Amendments to the Clause, designed, as they were, to ensure, or, at any rate, designed to limit, the extent to which this Clause affected, or even undermined, the civil liberty.

During the debate, a number of Amendments were moved and, indeed, a number accepted, for that purpose. Some had as their object the establishment, beyond controversy, that religious faith or political opinion should have nothing whatever to do with the question and the learned Attorney-General, in a series of interventions in the debate, was enlightening and lucid. If some of us did not always agree with him, my right hon. and learned Friend established that the Government did not intend that the Clause should contain anything to make it an offence to hold any opinion or belief, religious or political. Some of us were a little doubtful about the effect of the Clause, but the Committee as a whole accepted what the Attorney-General said about those points.

As soon as we had disposed of the Clause in the light of what had been said, we had a debate on the Motion "That the Clause stand part of the Bill," to which there was an enlightened contribution before we strayed into Northern Ireland. In his remarks, the hon. and gallant Member for Perth and East Perthshire (Colonel Gomme-Duncan) said that those of us who are anxious about this Clause had taken up a considerable amount of time; that those of us who were anxious about the effect of the Clause on the civil liberty, were labouring under a misapprehension and that that misapprehension was that this Clause was aimed at, and had no other intention than acting against, "just another political party." He said it was not an ordinary party, but something else, and he claimed that some of us thought the Clause was directed against, as some special kind of law, this other party.

If there were no other evidence of the reasonable foundation for all the anxieties, and suspicions, and uneasiness that so many of us have felt in this Committee, it was in the speech made by the hon. and gallant Gentleman. I understood the Attorney-General to say that this was not directed against the holding of any political opinion. I know that there are people, although I am not one of them.

12.30 a.m.

Colonel Gomme-Duncan

What I said was that if one imagined that the Communist Party, against whom we are thinking in this Bill, because it is no good arguing that we are not, is an ordinary political party, like a respectable political party, then one is under a great misapprehension.

Mr. Silverman

I do not know whether we are entitled to debate the principles or tenets, if there are any, of the Conservative Party, the Liberal Party, the Labour Party or any other party. If that is in order, the night is still young and we can go on and on debating any of these political ideas. But the only way in which the intervention of the hon. and gallant Gentleman could have been relevant to the discussion at all was the way in which he seemed to be making it relevant at the time. I am glad that he has had second thoughts since; if not, I am sorry. But he said that he thought the Communist Party was not an ordinary party, and he thought it was an illegal party and that this was directed against it. If it was, that justified every step that we had taken.

It may very well be that the Communist is what the hon. and gallant Gentleman says. I am not arguing that now as I should be out of order if I did so. It may well be that some hon. Members think that this party or some other party, for this reason or other reasons, should be declared by law to be an illegal conspiracy exactly as Communist countries declare parties other than Communist parties to be illegal. It may be right, as the hon. Gentleman thinks is right, to deal with political ideas in that way. But if we are to deal with political ideas in that way, we must do it specifically by measures designed to do it, and I take it, so far as the Government is concerned, that we are not dealing with that now, and that this Measure is not so designed.

That the hon. and gallant Member made the speech he did, ought to satisfy the rest of the Committee that this is a matter which we are right to approach with extreme care, caution, and suspicion. I beg the hon. and gallant Member to remember, if he will—and I hope it is not impertinence on my part to say it—that a great many people throughout the ages have said that it is all right for people to uphold any cause they like as long as they do nothing about it. But people, who sincerely hold ideas to be right, will never be content merely to hold them themselves.

It is of the nature of human beings living in society that if they regard certain ideas as the right ones and other ideas as the wrong ones, that they regard it as their duty as citizens to win converts to their views. I think, in the language of theology, the distinction has always been drawn between the Church militant and the Church triumphant. The Church militant is the active Church. It seeks to spread its ideas. It is the one that seeks to win converts, and the one that is not quiescent but active in the propagation of its faith. I think that the Attorney-General, from time to time, in the speeches he made, was inclined to say that nothing in the Clause prevents people from holding any opinion they like, implying, as it were, that although they held it they must not seek to spread it. It did not mean that, but that kind of idea seems to be implicit in some of things that had been said.

In the days of the Roman Empire [HON. MEMBERS: "Order."]—I am not out of order; in the days of the Roman Empire it was the law of the land that people should burn incense to certain gods. Those who thought that was wrong preached disobedience to the law of their day and were prepared to sacrifice a great many things, including their lives, for that propagation of disobedience to the law of their day. The essence of civil liberty very often is the liberty to preach disobedience for reasons which seem satisfactory to people who believe in civil liberty. I was glad to hear what my right hon. and learned Friend had to say and I hope he will take a further opportunity to assure hon. Members opposite that this Clause and this Bill are not aimed at any political creed or any political faith.

Mr. H. Macmillan

Purely as a matter of courtesy, I should like to rise before we pass from this Clause and thank the Attorney-General for having accepted practically all the Amendments which were put down by my hon. Friends and, I believe, those put down by the Liberal Party. It is a satisfaction to us because there has been some anxiety in the Press and among the public about certain points. It is particularly satisfactory to us that all the Amendments which the right hon. and learned Gentleman has accepted have the effect of returning to the text of the 1934 Act.

Mr. Emrys Roberts

I shall be as brief as the right hon. Member for Bromley (Mr. H. Macmillan), but I cannot allow this Clause to pass without putting on record my own conviction that the case for including it in the Bill has not been made out. I did not find the speech of the Attorney-General convincing. I was about to develop my reasons for that when I was stopped on a point of order, and I want to put those reasons briefly now. The right hon. and learned Gentleman's case is that the Bill involves no more than the existing position; that the Bill consolidates and does not codify the existing position. But if that is so it applies to a very limited class of persons —the Z reservists who are called up or are liable to be called up under the Bill.

If there is any virtue at all in anything of this kind, or any necessity for it, why was it not in the National Service Act? The persons liable to be called up under the National Service Act are of a far wider class and at the immature age when such propaganda can be more harmful to their minds. Yet it was not suggested that a Clause of this kind was necessary in the National Service Act. When the Government can permit that kind of gap to be uncovered, I am not convinced that it is necessary to apply this kind of Clause for this very limited class of person.

Mr. Emrys Hughes

Before dealing with the Clause which applies to Scotland, I want to give some explanation about the point concerning Northern Ireland. [HON. MEMBERS: "No."] I claim to have a right to speak about Northern Ireland, because I can see it from my constituency. Just as I am sure that the hon. Member for Londonderry (Sir R. Ross) looks with pleasure at South Ayrshire, I look with equal pleasure at Northern Ireland. My anxiety about Northern Ireland arises purely from a desire to pour oil on troubled waters.

I want to point out to Members for Northern Ireland that by giving these powers to the Attorney-General for Northern Ireland they are creating a great deal of unnecessary controversy at a time when what we need is more peace and good will. I suggest that nothing will stir up more strife in Northern Ireland than to give these powers to the Attorney-General for Northern Ireland, because I would point out that Northern Ireland is the classic part of the country in which incitement to soldiers to disobey orders became such a subject of political controversy.

Mr. H. Strauss

The hon. Member seems to be under the impression that subsection (2) gives some power to the Attorney-General for Northern Ireland to institute prosecutions. It gives no such power: it only gives him power to stop prosecutions. The hon. Member, at an earlier stage, showed that he was against any prosecutions whatsoever under any part of this Clause. Why, therefore, does he wish to take away from anybody the power to stop prosecutions?

Mr. Emrys Hughes

I was so delighted with the hon. and learned Member's intervention in the debate that I am sorry he has blotted his copy-book now. I assume that if the Attorney-General for Northern Ireland is given certain powers in the Bill those powers are for the purposes of the Bill and I understand that if anybody incites or tries to incite a Z Reserve man in Northern Ireland, then the Attorney-General will be called upon to take action and, indeed, there might be prosecutions.

If there are those prosecutions in Northern Ireland I can hardly see that some precedent will not be quoted in the courts: and the inevitable argument that the Attorney-General will have to meet in the courts is that the great historic incitement to disobedience by soldiers in Northern Ireland was that by Sir Edward Carson. I do not want to pursue that—[Interruption.] I want to nip this ill-feeling at birth.

I want to thank the Attorney-General for the pacific speech he made tonight. He has, indeed, done a good deal to redeem the reputation of the Law Officers of the Crown, because there was some very severe critcism of the Law Officers of the Crown from so eminent and impartial a paper as the "Manchester Guardian" which, referring to this Clause said: The political amorality of lawyers is a matter for endless wonder. In 1934 the Attorney-General was an elegant non-political barrister, in those days, but the Prime Minister should have remembered his own votes and speeches and Mr. Aneurin Bevan should have recalled how he startled the pigeons in Trafalgar Square with his vehement denunciations. I view that comment by a leading influential paper, which influences public opinion in this country, as relative to the discussion of the Clause and I will only quote a final sentence. It goes on to refer to the Communists—[Interruption.] The hon. and gallant Member for Perth and East Perthshire (Colonel Gomme-Duncan) is, I know, very much concerned about Communism. I had a debate with him about it in his constituency and he knocked the whiskers off Karl Marx.

About the Communists the "Manchester Guardian" made this very relevant remark: But because the Communists are pretending to be the friends of freedom and it does not mean that the Government is not at fault. Its own supporters do not like to see it cynically going back on its own principles to satisfy the Crown lawyers' love of repressive powers. I am glad to say that the Attorney-General has largely redeemed the reputation of that most respectable profession by his speech tonight.

12.45 a.m.

Now I want to turn to Scotland. I am glad to see the Solicitor-General for Scotland here, because if there are any of these trials in Scotland the Solicitor-General for Scotland will have to bear the odium of conducting the prosecution. I would point out that the Socialist lawyers of Scotland are a society called the Muir Society. Now, who was Muir? Thomas Muir was an eminent lawyer who was sent to Botany Bay because he preached incitement to sedition at the time, and I do not know what the Muir Society will say if there are prosecutions of that kind in Scotland. I suggest that the Attorney-General should point out to the Solicitor-General for Scotland that the specific references to Scotland in the Clause deserve so much attention that they should be referred to the Scottish Grand Committee, because I am quite sure the Attorney-General would be quite happy to be relieved of the responsibility.

Do the Government realise what they are doing by putting the Clause, as it affects Scotland, on the Statute Book? There have been very severe sentences, under previous Acts quoted by the Attorney-General this evening, on people who made allegedly seditious or inciting statements. There was a very well-known case in Scotland of John MacLean. During the First World War, John MacLean was prosecuted for incitement to disaffection and he received the very severe sentence of five years' penal servitude. Instead of that sentence suppressing the views of John MacLean, he became the great hero of Scotland for a very long time, and he inspired James Maxton who, in turn, was prosecuted for incitement to disaffection.

Another case relevant to this Bill is the case which affected the right hon. Member for Dunbartonshire, East (Mr. Kirkwood). If there are to be incitement to disaffection trials, this is a very important precedent, and details of it will be found in the Library. In this trial very prominent figures in our political life were in the dock, including the Minister of Defence—

The Chairman

I have given the hon. Gentleman a great deal of latitude, but he will appreciate that his remarks on this and other cases are not relevant, because subsection (1) refers to persons called up or liable to be called up under…this Act. The Bill does not refer to any other persons.

Mr. Hughes

I do suggest that all this discussion has been on the question of incitement to disobedience, and in quoting precedents I am only quoting the arguments of the Minister of Defence and pointing out the danger of carrying this Clause because of the effect it will have upon recruiting and the call-up in Scotland. However, I will abandon that line of approach.

I submit, however, that the sentences under this Clause—two years' imprisonment and a fine of £500—are harsh for Scotland. [HON. MEMBERS: "They have gone."] They have not all gone. If the Attorney-General assures me that there will be no sentences of imprisonment or fines in Scotland then, of course, my argument does not hold good. But there are still heavy penalties contained in this Clause for Scotland. Now sentences will be for inciting someone not to fight in the Army. How do they compare with the sentences for incitement to fight?

In the case of Rex v. Kirkwood and Shinwell, there were certain penalties. My argument is that the penalties for inciting not to fight should not be more than the penalties for incitement to fight. The penalty that was very harshly and unjustly imposed upon the Minister of Defence was five months' imprisonment. I do suggest that if one gives five months' imprisonment to someone for inciting to fight, one is not entitled to give more than that period to someone who incites not to fight.

I submit that this is high political explosive in Scotland. The worst thing we can do with the law is to make it look ridiculous, and if we have any of these trials in Scotland, sanctioned by the Solicitor-General or anyone else, the first witness a man will call will be the Minister of Defence. I do not want to be embarrassed, as a Socialist in Scotland, having to defend the Minister of Defence at a trial of this kind. I suggest that as far as Scotland is concerned the Solicitor-General and the Attorney-General should look at the Clause again, and say, "Nothing doing: wipe it out."

Lieut.-Colonel Bromley-Davenport (Knutsford)

I will not detain the Committee more than a few minutes, but having listened to the stone-walling and boredom of the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) all day, I think a backbencher might "have a knock." I understand that the object of this Clause is to prevent people from inciting others to disobey orders which they are asked to carry out to defend their country. In other words, a form of sabotage. We all want to prevent that. I heard the Attorney-General as saying—and I know he will stop me if I am wrong—that this is the punishment the Government intend to inflict on people who incite others. If an attempt is made to stop people joining up or to incite them to break the law, that can be regarded as a misdemeanour, with a penalty up to life imprisonment. Is that right? Would the Attorney-General please stop yawning? If they incite Class Z reservists not to join, the punishment can be without limitation.

I want to make certain that the Clause works and that there is no means of getting round it. I am going to give the right hon. and learned Gentleman five concrete examples of incitement to disobedience that actually occurred before the second World War. These men got away with it then because, apparently, there was no law to stop it. We all want to prevent it happening again. I shall give a few brief examples and I wish to know whether this Clause will stop the repetition of these shameful statements.

The Chairman

I have already indicated to the Committee that remarks are only relevant to this Clause in relation to persons when called up under this part of the Bill, not to cases during the last war.

Lieut.-Colonel Bromley-Davenport

I quite agree. What I want to know—and it will be painful to some hon. Gentlemen —is whether, if such statements are made in the future, this Clause will stop sabotage. My first one is: "Every pos- sible effort should be made to stop recruiting for the armed forces." There cannot be much greater incitement than that, and that disgraceful statement was made by Sir Stafford Cripps. My second example: "The capitalists are in your hands…"

The Chairman

The hon. and gallant Gentleman really cannot make these remarks they are out of order, as being irrelevant.

Sir Ian Fraser (Morecambe and Lonsdale)

On a point of order. May I ask you, Major Milner, with all respect, to consider the limitations that you are seeking to place upon these speeches. It surely has been a long-standing tradition of the House, in which I have had the honour to sit for 27 years, that full and ample examples may be given, and I submit that it is a new practice to try to limit debates in Committee I beg you to consider that long-standing tradition.

The Chairman

I agree that there are occasions when illustrations and examples may properly be given, but they must be relevant to the matters before the Committee. Furthermore, if the Committee will forgive my saying so, I do not think some of the things that have been said are really consonant with the dignity of our proceedings. I hope hon. Members will not make personal allegations and reflections. That applies equally to all sides of the Committee. We have almost got through a very difficult Bill and I hope that we may conclude our proceedings amicably.

Mr. John Foster (Northwich)

Further to that point of order. Is it not in order for my hon. and gallant Friend to give instances of what a Z reservist might say or do? He might be led into error by following examples of what people have said before. If you put a case "supposing a Z reservist did or said that," surely it is relevant to ask if such a man would come within the mischief of the Clause?

1.0 a.m.

The Chairman

I would remind the hon. and learned Gentleman that the hon. and gallant Gentleman has not put his case in that form. I have to deal with what is said and not with what might be said.

Lieut.-Colonel Bromley-Davenport

I suffer from the disadvantage that I did not hear a great deal of what you said Major Milner, but I got the gravamen of it. Suppose the following is said to a Class Z reservist? Can this be classed as an offence or incitement under the Act: No war can be justified under modern conditions. Have nothing to do with it under any circumstances. Refuse to fight. Refuse to enlist. Refuse to play at soldiering. Refuse to be conscripted. If that is not incitement, I should like to know what is. That was said by Dr. Alfred Salter, the Socialist M.P. for Bermondsey, West, in May, 1933.

The Chairman

I cannot allow the hon. and gallant Gentleman to "bring up," if I may use the expression, cases which I think have no relevance to this Clause. I trust that he will resume his seat.

Sir I. Fraser

On a point of order. May I beg you, Major Milner, not to introduce what are really quite strange and new rules for this House? [HON. MEMBERS: "Oh!"] May I beg you to consider the long traditions of the House? For example, you were good enough to advise that we must not be undignified. That, surely, is a matter for the Committee.

The Chairman

The hon. Gentleman is now venturing to comment upon my remarks. I made a suggestion to the Committee which I hope they will take in the spirit in which I tendered it to them. I think we must have regard to our traditions of tolerance and dignity in debate both in Committee and in the House. I hope that all hon. Members will agree with me on that.

Mr. S. Silverman

I submit, Major Milner, that the Clause is one which prescribes penalties for inciting persons to repudiate their obligations under the Act. It is vitally important to know what kind of thing would be an offence under the Act and what kind of thing is not. Is it in order to pick out famous examples of things we all know have been said and ask whether or not they would be an offence under the Clause? Will the Attorney-General tell us, when he replies, whether that kind of thing, not being an offence, when said under the old circumstances would be an offence under the new circumstances of this Clause.

Lieut.-Colonel Davenport

Could you now tell me, Major Milner, as it seems to be going either way, whether I am to be allowed to quote any more of these disgraceful statements. [HON. MEMBERS: "Go on."] I see hon. Gentlemen opposite nod. I do not know whether that may be to lead me up the garden path. However, I will risk one more.

The Chairman

I hope the hon. and gallant Gentleman will not risk any more. I have to be guided by my own views of what is relevant and what is irrelevant. I think that the examples which the hon. and gallant Gentleman gave have no relevance to this Clause. I have to be guided by my view, and I hope he will not proceed with these matters.

Mr. Nigel Birch (Flint, West)

On a point of order. If incidents from the 1930's are not to be quoted, may it not be impossible for Socialists to take part in the debate at all?

Mr. Pickthorn

Further to that point of order. I am not quite sure who has been in the Chair at which part of the debate, but it will be within the recollection of the Chair corporate, if that expression is not improper, that we have had continuous references to, citations from and questions about the effect of the Sermon on the Mount, the Essay on Liberty and many other statements by leading preachers and politicians from the past. Is the ruling now that the line must be drawn at the point at which the Socialists began to be reported?

The Chairman

I do not know whether that was a reflection on the Chair. I did not gather all the hon. Gentleman said.

The Chairman

A great deal of time is being wasted, and I hope that the hon. and gallant Gentleman will now take note of what I have said.

Lieut.-Colonel Bromley-Davenport

I believe the Committee will sympathise with me. I feel a certain amount of bad luck in having sat and listened to other speeches, and now I have mine all ready I cannot give it. I have been able, fortunately, through your tolerance, Major Milner, to give two or three disgraceful examples of sabotage before the Second World War. I hope that this Clause will prevent Socialists from doing again what they did then. Never again must we let such guilty men incite our people not to defend our country. Whether we agree with the Government's foreign policy or not, it is unforgivable to leave the country undefended and at the mercy of the enemy. Shame on those men for what they said and what they did. They ought to have been exported overseas long, long ago.

Mr. Driberg

rose

Mr. N. Macpherson

—I see that the hon. Gentleman the Member for Maldon has in his possession, or under his control, a document, reference to which you Major Milner have already ruled out of order.

The Chairman

I have no idea of what the document is. I have certainly not ruled any document, or book, out of order.

Mr. Driberg

It is the sinister and mysterious document called HANSARD, and it is the HANSARD of Northern Ireland—if they call it that. It will come up, in due course, in what I hope will not be a protracted speech. I must congratulate the Government, in all sincerity, upon having secured the allegiance of what one might call, perhaps, the intellectuals of the extreme Right even more firmly than it has secured the allegiance of the so-called intellectuals of the Left. I must also confess that I would not have risen at this late hour if it had not been for the regrettable curtailment of the speech of my hon. and learned Friend the Member for Hornchurch (Mr. Bing). [HON. MEMBERS: "Oh."] Is there any objection?

The Chairman

The hon. Member appears to be desirous of being offensive to the Chair.

Mr. Driberg

Oh, no, Major Milner.

The Chairman

The hon. Member's remarks certainly appeared to have been intended as a reflection on the Chair.

Mr. Driberg

Not at all.

The Chairman

If they were not, perhaps the hon. Member will say so in specific terms, or, if they were, perhaps he will withdraw them.

Mr. Driberg

I am extremely sorry, but I was assuming, in my innocence, that you, Major Milner, regretted as much as we all did, the necessity that you, quite rightly, felt to curtail the remarks of my hon. and learned Friend the Member for Hornchurch. That was why I used the word "regrettable." I am sure we all regretted it, because my hon. Friend is so brilliant and entertaining and informative. I am sure, Major Milner, that you will see what I mean. Otherwise, I can only say that I am very sorry, because we all hold you in great veneration, if I may say so, not only as the occupant of the Lower Chair and, from time to time, of the Upper Chair, but also as one of the representatives of the great conurbation of Leeds. I am aware of—

The Chairman

Order. The hon. Member's remarks are out of order. They have no relevance at all.

Mr. Driberg

I was trying to explain how sorry I was.

The Chairman

I shall be obliged if the hon. Member will confine his remarks to the matter before the Committee, which is the question whether Clause 6 shall stand part of the Bill, and to that matter alone.

Mr. Driberg

I was a little puzzled by your ruling, Major Milner, though, naturally, I accept it, because I see that the last part of the Clause does refer to Northern Ireland, and that there is a specific reference to the fact that no prosecution in Northern Ireland shall take place without the consent of the Attorney-General for Northern Ireland. Although I perfectly well see the point of the hon. and learned Member opposite, that this is purely a negative, rather than a positive, provision, it does seem to me that it is relevant to that subsection to inquire into the conditions in which the Attorney-General for Northern Ireland would be expected to give his consent to such a prosecution. I do not see how that can possibly be out of order.

The conditions in which the Attorney-General for Northern Ireland would give consent to such prosecutions must obviously be determined, to some extent, by his own known views and attitude on various relevant subjects, on cognate prosecutions, and so on. It therefore seems relevant to refer—and this is whether this book comes in—to a question which he answered on 27th May, 1947, in the Northern Ireland Parliament on the question of whether it was permissible for a Resident Magistrate to belong to a secret political society, such as the Orange Order"— to which he replied with an emphatic affirmative—he said that from a very long knowledge of, and from association with and membership of the Orange Order, he thought that membership of that Order would do everything to help the magistrate to arrive at just decisions. That, Major Milner, is surely a significant point in relation to this question of whether prosecutions in Northern Ireland of people who may or may not be opposed to the existing government of that country should take place. As we see under this Clause that they are not to take place without the consent of the Attorney-General of Northern Ireland, I feel that my right hon. and learned Friend might like to look into this matter a little more carefully; because there are also other aspects of it.

1.15 a.m.

Suppose that such a prosecution took place in County Fermanagh. The Crown solicitor would probably be Mr. E. C. Ferguson, who is a Member of the Northern Ireland Parliament; and it will be within the recollection of hon. Members opposite what some of his recent observations have been. He cannot be described as an impartial judicial figure. Speaking at a meeting of the Fermanagh—

Sir R. Ross

On a point of order. Are we to have quotations from very distinguished persons on subjects which seem quite irrelevant? Are we to have read out to the Committee all the quotations which the hon. Member for Maldon (Mr. Driberg) can find?

The Chairman

I allowed a certain latitude to the hon. and gallant Member for Knutsford (Lieut.-Colonel Bromley-Davenport) and I am now waiting to hear what the hon. Gentleman says.

Mr. Driberg

I am sure, Major Milner, that if my remarks are not in order you will stop me. Although this statement was in April, 1948—nearly three years ago—it seems to me to have some relevance. That, of course, is why I am quoting it. At the annual meeting of the Fermanagh Unionist Association, Mr. Ferguson said—

The Chairman

I really cannot allow the hon. Member to proceed on that line. I have asked other hon. Members not to do so, and I must now insist that he does not. The hon. Gentleman's remarks are too far removed, in my view, from the Clause before the Committee.

Mr. Driberg

May I, then, ask what conditions are envisaged under which the learned Attorney-General of Northern Ireland would refuse to assent to such a prosecution?

The Chairman

That question should not be addressed to me.

Mr. Driberg

Could I then, address it to the Government Front Bench—if they are capable of answering it?

The Chairman

The hon. Member should make his speech and, if necessary, I will call him to order.

Sir R. Ross

The Attorney-General to whom the hon. Member is referring has since been made a judge; and that was done by the hon. Member's own Government.

Mr. Driberg

The Crown solicitor is the gentleman who would advise the Attorney-General of Northern Ireland.

The Chairman

The point is too far removed from the matter before the Committee.

The Parliamentary Secretary to the Treasury (Mr. Whiteley) rose in his place and claimed to move, "That the Question be now put."

Clause, as amended, ordered to stand part of the Bill.

GLOBAL ISLES COURT OF RECORD