HC Deb 30 June 1879 vol 247 cc1016-21

Clause 98 (Validity of attestation and enlistment or re-engagement).

MR. O'DONNELL

moved to omit the words— Where a person not attested or re-engaged is in pay as a soldier in any corps of Her Majesty's regular forces, such person shall be deemed for all the purposes of this Act to be a soldier of the regular forces as if duly attested or re-engaged, with this qualification, that he may at any time claim his discharge; but until he so claims and is discharged in pursuance of that claim, he shall be subject to this Act as a soldier of the regular forces duly attested under this Act. It seemed to him that the principle which was there recognized was a very unsafe one. He thought it was rather a dangerous and irregular proceeding that the authorities should be encouraged in that way to have in the ranks persons who were no longer soldiers, but who were passing off as soldiers. He thought that the authorities should be careful that nobody was serving in the ranks who was not properly attested and engaged as a soldier, and that to pass the cause, in its present shape, would establish a bad practice.

Amendment proposed,

In page 53, line 3, to leave out from the word " discharge," to the word " Act," in line 11, inclusive.—(Mr. O'Donnell.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

COLONEL STANLEY

explained that the object of the provision which it was proposed to omit was to enable the authorities, when a man was continued in pay as a soldier, to deal with him as a soldier of the Regular Forces. For instance, it was very likely that a man might be detained a few days over his service of 21 years, and during those days he would receive pay, and all other benefits of the Service. It might be—and very often was—for his own convenience that he was so detained; and it would obviously not be right that he should be perfectly free from liability to discipline.

MAJOR NOLAN

admitted. that questions as to discharge were continually arising, and he knew of one case, such as was contemplated by the clause, which occurred in a battery in which he was serving at Woolwich. In that case a court martial was convened to try a man after his '21 years' service, and the president refused to try him because of the absence of such a provision as that now introduced into this clause. At the same time, ho thought that this was a very doubtful provision to introduce, as its effect would very likely be to encourage officers to be very loose and easy in the performance of their duty of discharging a soldier. If it were retained, he would suggest that after a man had claimed his discharge there should be a limit of time, say a week, fixed after which he should not be kept on.

COLONEL STANLEY

said, that if the hon. and gallant Gentleman had read the next section, he would see that that point was provided for— Where a person claims his discharge on the ground that he has not been attested or re-engaged or not duly attested or re-engaged, his commanding officer shall forthwith forward such claim to the competent military authority, who shall as soon as practicable submit it to a Secretary of State, and if the claim appears well grounded the claimant shall be discharged. Of course, if he found it was possible to add any force to that section he would do so; but he did not then see how it could be done in an Act of Parliament, because cases might arise which it was impossible to meet.

SIR ALEXANDER GORDON

remarked, that this question had been settled long ago. If a man received pay as a soldier, it was held to bring him under the Mutiny Act, In a case which was decided at the end of the last century, by Lord Lough borough, a soldier, who was punished by corporal punishment, appealed to the Court of Queen's Bench, and said he was not re-enlisted as a soldier, and the Court decided that he was a soldier because he received pay as a soldier.

MAJOR NOLAN

said, that the observations of the hon. and gallant Gentleman applied to the former paragraph of the clause where a doubt existed as to a man's enlistment. But these questions of discharge were continually occurring; and in the case which he had cited as happening at Woolwich, the president refused to try unless he received a direct command from the convening officer, overruling the man's objection. He did not think that point had ever been decided. No officer, if he could possibly help it, would, under the present law, place himself in the position of trying a man whose 21 years had expired. The Government were getting rid of that difficulty, and settling in this section what had always been a very doubtful point of law, which an officer was very anxious not to overstep. It stood to reason that if a man were enlisted for a term of 21 years, or 12, it was a very delicate thing to punish that man when his time was up if his engagement had not been renewed either by himself or by a general officer. He must say that there was a great deal in the objection of the hon. Member for Dungarvan (Mr. O'Donnell); and something ought to be done to provide that if a man claimed his discharge he should not be proceeded against unless his claim had been considered within a certain period.

MR. PARNELL

thought the clause required to be carefully considered. He found that there was really no redresss for the soldier who claimed his discharge and did not obtain it. The succeeding paragraph to which reference had been made did not give him any redress. That paragraph would appear to refer to a different class of cases; but, at any rate, it only provided that a claim to be discharged should go before the Secretary of State as soon as practicable, and if it appeared to be well-founded the claimant should be discharged. He thought it would be well to guard this clause by giving some tribunal the power to decide the question on the spot. Surely, the ordinary courts of the land should be competent to decide a question whether a man was a soldier or not who had not been re-enlisted or re-engaged. So far as he could see, there was nothing in the clause to prevent the Secretary of State for War from detaining a man for an indefinite time.

MR. O'DONNELL

did not think that the section of the clause to which the Secretary of State for War had referred was of a character to remove their objections. That section recited that where a person claimed his discharge on the ground that he had not been duly attested or re-engaged, his commanding officer should forthwith forward such claim to the competent military authority; but this latter officer would not have power to decide on the man's case. His duty would be, as soon as practicable, to submit it to the Secretary of State, and if the claim appeared to be well-founded, the claimant should be discharged. What had the Secretary of State to say to the case of a soldier who, being in India, claimed his discharge on the ground that he had not been duly re-engaged? In such a case all this circumlocutionary process would have to be gone through; and, meanwhile, the soldier, who was not duly re-engaged, would be liable to all the penalties of the Service. He did not think that the Committee would be justified in giving such very large powers to the authorities. He desired to repeat, much more strongly and emphatically, that there was abundant evidence that the Bill was badly, loosely, and negligently drawn; and that, sooner than take the trouble of having it properly drafted, the Government were asking the Committee to pass over this, that, and the other irregularity and illegality. That was not a proper way in which to treat the Committee. It seemed to him that throughout the discussion of this Bill the Government had adopted something of a plan of this kind. Supposing that they wanted an inch of permission anywhere they, in fact, asked the Committee to grant them the whole ell; and then, when they objected to their getting any more power than they had any real need of, the result was to call up their majority and trample down all opposition.

MAJOR NOLAN

suggested that the difficulty might be got over by the insertion of words to provide that a man might be tried for any offence previous to his claim for discharge.

COLONEL STANLEY

pointed out that if a man was not tried he had no practical grievance; and asked how they were to deal with a case where a claim had been made which turned out to be groundless, and was, therefore, not allowed?

MAJOR NOLAN

replied, that, in that case, he would be tried as a soldier.

MR. BIGGAR

did not see why there should be any discussion on this point at all. If a man engaged to serve in Her Majesty's Forces for a certain number of years he ought, at the expiration of his term, to be entitled to his discharge at once, without any more ado or trouble on his part. But, certainly, to say that a man whose time had expired, and who had made a formal application to be discharged in accordance with his contract with the State, should thereafter be liable to the rules of the Service was perfectly preposterous.

COLONEL STANLEY

said, that very likely there might be a tendency to keep a man on longer; but his broad contention was, that if a man remained on receiving pay, drawing rations, and living in barracks, he should be amenable to discipline as a soldier. As regarded India, his impression was that the authority there did decide these cases, and the men were sent home.

MR. PARNELL

said, that if the right hon. and gallant Gentleman were correct in his impression, then the clause would take away that power.

MAJOR NOLAN

desired to know whether the paragraph was an innovation, or whether it merely carried out the old Mutiny Act?

COLONEL STANLEY

The clause is new in the wording, but it is old in its substance.

Question put.

The Committee divided:—Ayes 156; Noes 14: Majority 142.—(Div. List, No. 141.)

MR. PARNELL

moved to leave out "as," in line 15, down to " appears," in line 16, in order to insert the words— Bring such claim before the nearest court of summary jurisdiction, and if the court decides that. The object of the Amendment was that if a soldier claimed his discharge on the ground that he had not been attested or re-engaged, or not duly attested or re-engaged, the commanding officer should forthwith forward such to the competent military authority, who, having submitted it to the Secretary of State, should then order the case to be dealt with by a court of summary jurisdiction.

COLONEL STANLEY

did not see how such an Amendment would work.

MR. PARNELL

said, his point was this—that the attestment was a civil act, and not a military one. Therefore, a court of civil judicature was the proper tribunal to decide whether the man had or had not been duly attested or re-engaged. It was not a question of breach of military discipline; but it was a question of the legality of an act committed by the recruit before he was a soldier. Under those circumstances, he submitted the only proper tribunal to settle the matter was a civil, and not a military, one. Of course, if the Secretary of State for War objected, he would not press the Amendment.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 99 (Application of Part Two of Act).

COLONEL STANLEY

I propose that this clause should be struck out.

Clause struck, out.

Clause 100 (Construction of Acts relating to enlistment).

COLONEL STANLEY

I propose that this clause also should be omitted.

Clause struck out.

Clause 101 (Definition for purposes of Part Two of competent military authority and reserve) agreed to.

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