HC Deb 01 April 1901 vol 92 cc423-39


Order for Second Reading read.

Motion made, and Resolution proposed, "That the Bill be now read a second time."

* SIR CHARLES DILKE (Gloucestershire, Forest of Dean)

There is a new clause in this Bill which raises a question that ought, perhaps, to be mentioned on the Second Reading of the measure with a view to eliciting from the Government their intentions, and calling upon the Secretary of State to make, before we reach that clause in Committee, a statement of those intentions—if such a statement cannot be made here to-night. The House may remember that when attention has been called during the present and the last session to certain surrenders in South Africa, and to inquiries which have been held into those matters, Members on each side of the House have spoken in favour of assimilating the procedure in the Army to that in the Navy, and, roughly speaking, laying down the principle that in all cases of surrender there should be a trial by court-martial, just as in the Navy there is a trial by court-martial in every case in which a ship is lost. There have been pointed out by the Government obvious reasons which make it difficult or impossible to follow exactly in Army matters the procedure in the Navy, but I understand the First Lord of the Treasury, in an answer which he gave, promised consideration of how far the practice in the Army might be modified in this respect. The only change made in the Bill before us is to insert a new subsection— Rules as to procedure.—All Courts of Inquiry may provide for evidence being taken on oath"; and other words to the same effect.

The first question I should like to ask the Government is whether they are under the impression that those words apply to the courts as to which there has been most doubt and difference of opinion, which have been held during the present war. My own impression is that this legislation will not apply to courts of that description, and I will very briefly explain why I hold that view. The Army Act, which is amended and, as it were, brought into force for the year by this Bill, gives the King and the Secretary of State for War the power to make provisions in respect to the assembly and procedure of courts of inquiry, and this new clause extends that power in a particular point. It might at first sight be supposed that it dealt with what have been called "Courts of Inquiry" held during the present war, but I do not think it does, and I am prepared to assert that it would not apply to the courts which have attracted most public attention. In the latest edition of the Queen's Regulations—or, as I suppose we must now call them, the "King's Regulations"—there are the rules laid down under the powers given by the Army Act. These rules deal with certain courts of inquiry which have been held in some cases during the present war. There are three kinds described: Courts of inquiry into cases of deserters, courts of inquiry into loss of stores, and a class of courts of inquiry which has attracted some attention in connection with recent unfortunate events in South Africa. By paragraph 537 of the King's Regulations— a court of inquiry may he assembled by any officer in command to assist him in arriving at a correct conclusion upon any subject on which it may be expedient for him to be thoroughly informed. Such a court of inquiry is one which must be held under the King's Regulations in certain cases—the cases which I have named, and also in the case of the recovery of persons who have been taken prisoner by the enemy. That court— may be required to give an opinion on any point not involving the conduct of any officer or soldier. The object of these courts in the cases of prisoners recovered is stated in paragraph 544— In order to prevent any officer or soldier who may have been taken prisoner of war through his own neglect or misconduct from obtaining any advantage under the Royal Warrant for pay, etc., a court of inquiry is, as soon as possible after his return, to be assembled by the general officer commanding to investigate the circumstances in which the capture took place.…. (and to) record an opinion as to whether the officer or soldier was taken prisoner by reason of the chances of war, or through neglect or misconduct on his own part. The proceedings will be forwarded to the War Office. To those courts of inquiry the change will undoubtedly apply. Many such courts have been held in South Africa. In some cases, however, statutory courts have been held on officers upon whose cases non-statutory courts had previously been held, and to those non-statutory courts the change will not apply. The courts are what are known as prerogative courts of inquiry, and in the great authority on this subject, "Military and Martial Law," by Clode, in the chapter on "Courts of Inquiry," it is perfectly clearly laid down that there are these two classes of courts—prerogative and statutory. The principle which Clode lays down is that— the Army can only be governed by absolute power being vested in the Crown; which, when occasion requires it, must be exercised summarily, and, may be, silently, against the status of officers and soldiers. Instant dismissal of individuals, or prompt disbandment of regiments without cause assigned, is an exercise of power which must be lodged somewhere, and by our Constitution it is confided to the Crown as the supreme power in the State. Out of this may arise—upon occasions felt by a conscientious Minister—the necessity of previous confidential inquiry before this power of annihilation is exercised, etc. Then he goes on— As the criminal law of the Army can only be put in force against an inferior by a superior officer, cases may arise in which the facts are not so patent, or the source of information so impartial, as to satisfy the latter officer that justice demands a courtmartia trial upon the accused. That is to say, these prerogative courts are considered by Clode to be the proper means of proceeding when the General Officer Commanding-in-Chief requires the advice of officers who have time to look into the facts as to whether he shall take what Clode calls "steps of annihilation"—that is, whether he shall recommend that the services of an officer be dispensed with, or that he be placed on half-pay, or whether he shall order a court-martial. In these cases the inquiry is to advise the General Officer Commanding, and any steps which are taken are taken not by the court of inquiry, but by the General Officer Commanding or the Secretary of State. These courts are unsworn to secrecy; they are not required to arraign the supposed culprit before them; they may take any course they may deem best suited to obtain information on which higher authority can safely act— Their finding is, in fact, advice and information confidentially given to the Crown or general officer.… The ultimate use which is to be made of information thus obtained involves very different considerations. Before anyone is prejudiced by the results it would appear desirable, if not demanded by justice, that the substance of the charge be communicated, and an opportunity of explanations be afforded to him." (Clode, p. 199.) I am quite prepared to believe that in many cases which may happen in war it is necessary to take immediate or summary steps, and I should support the military authorities or the Secretary of State in taking those steps, but before the House agrees to this change of law in connection with these courts it ought clearly to understand that the courts of inquiry in connection with which the most doubtful points have arisen in the present war are courts which will not be affected by the statutory change.

I have referred already to not the definite promise, but the suggestion thrown out by the Government that they may be prepared to change in some degree the King's Regulations upon this subject. The country has undoubtedly been profoundly moved by many acts showing lack of discipline as well as lack of training, incompetence, and a lack of military virtues in isolated cases during the present war. I think it is generally desired that all those cases of surrender should be investigated rapidly and completely. As to whether it is possible to apply courts-martial to all such cases, as many Members of the House appeared to wish in the course of a recent debate, I am quite prepared to learn from the Government that there are great differences between land and sea warfare, and it may be very difficult indeed to lay down the absolute principle that there shall be a court-martial in every case. Possibly it will be proposed to extend the principle of courts-martial to cover a larger number of cases than at present. If the Government wished to make a new crime of any kind, if the present definitions of misconduct are not sufficient, it would be necessary, of course, to deal with the matter, as far as courts-martial are concerned, by statute, because the military offences are specified in the present law. If that catalogue of offences is not accurate or complete, amendments ought undoubtedly to be introduced into this Bill in Committee to make it accurate and complete. In the catalogue of military offences the very first is one which I confess I think requires some modification. That offence is described in these words— Shamefully abandon or deliver up any garrison, fortress, post, or guard committed to his charge, and the word "shamefully" again occurs in the course of the paragraph. It is a very difficult offence to prove against a British officer that he has shamefully abandoned a place committed to his charge, but there are cases in which undoubtedly the abandonment or the surrender of a post falls short of what any man would like to call a "shameful" abandonment, and yet ought to be visited by military punishment, and, I think, followed by court-martial. Certainly, in my opinion, the first paragraph requires amending by the omission of the word "shamefully," as the word renders a conviction most difficult, but there are general words in the military offences which, I confess, without straining them, seem to me to cover most of the cases which we think ought to be the subject of a regular inquiry. A paragraph says— Knowingly does…any act calculated to imperil the success of His Majesty's forces or any part thoreof. In the four cases of the surrender of isolated posts in the present war which have been alleged to have compromised the success of the main body I should have thought that those words were sufficient, and that those surrenders might have been dealt with by court-martial under paragraph 6, without the amendment of paragraph 1 by the omission of the word "shamefully." The other day we pressed one particular case in which the Secretary of State for War, in reference to a despatch laid upon the Table giving the finding of the inquiry into the Lindley case of Colonel Spragge, was asked, not unnaturally, I think, for the names of those who had compromised the success of the main party by showing the white flag alluded to in the despatch. I should imagine that, under paragraph 6, those who did so might be tried by court-martial.

But whether the existing list of military offences is sufficient or not, I think it is necessary to call the attention of the House to the fact that we require some further redemption of the virtual promise of the Government than is contained in this proposal giving power to administer the oath. The most difficult cases to deal with are cases, not of the commission of a military crime, but of incompetency. It is constantly necessary in war to remove men who, although very likely competent at one time, have ceased to be competent, or who, while competent in an inferior post, are not competent in a superior post to which they have gradually, by time, risen. Such cases are very difficult to deal with, because of the impossibility of describing the fault as a military crime. In the case of a loss of a ship in the Navy the circumstances are investigated as a matter of course, and trial by court-martial is not supposed to reflect in any way upon the personal character of the officer subjected to the charge. In the case of the Army there must undoubtedly be the power of summary dismissal for incompetency, if for no other fault, and I am quite willing to support the Secretary of State in exercising that power, even though it involves that which to lawyers may seem hardship. But I cannot help feeling that in some cases in South Africa the very fact that the law is not at all clear has led to a great deal of doubt and difference of opinion and difficulty on the part of many in supporting the War Office and the Commander-in-Chief in a course in which I personally think they ought to be supported. A writer who has considered these subjects as thoroughly as any man in the country has pointed out most clearly how necessary it is to remove for incompetence. He has pointed out that— in a battalion, though it would he too much to say that the Commanding Officer is everything, it is the simple truth that everything depends upon him. His capacity is the limit beyond which progress is impossible. If he is incompetent the battalion is blighted, and there is no cure short of his removal. That I fully admit, but the difficulty of removing without an inquiry, or the difficulty in some cases of holding an inquiry, or the question of the persons of whom the court of inquiry shall consist, it is not now the time for this House to consider in connection with the Bill before us. I think it would have been better for the Government frankly to tell the House that they would have to improve and amend the King's Regulations, to issue a new edition corrected by the lessons of the South African War. I am sure that any new version of the King's Regulations approved by Lord Roberts and the present military authorities would command the confidence of the House and the country. That there is confusion, and that a certain amount of discontent is produced by the confusion, I do not think anybody will deny; and although I am far from saying that in all cases you ought to hear an accused man in his own defence, although I fully admit it may be necessary not to do so, although I know the difficulties involved by the fact that an inquiry may compromise another man who has not been tried at all, yet I cannot but feel that the present necessity of holding two courts in the case of the same man, as has occurred in some instances, is a most painful one. It has been thought necessary in the present war to hold a prerogative court of inquiry upon a man, and, having placed him on half pay or declared that the Sovereign had no further need of his services as a result of the first inquiry, you have had, after his recovery from captivity, to hold a second or statutory court of inquiry into the same case. If the two courts had been the one a strong and the other a weak court, or if the two courts had taken different views, see what an opportunity would have been afforded for complaint in regard to the treatment of the officer concerned. Personally I think it would, be better to have only one court of inquiry, and to make all courts of inquiry of the nature of the present prerogative court. Where you depart from that you should have a court-martial and resort to courts-martial rather more freely than you do at present. Whatever may be the views of the Government, I ask them, as soon as they can, to take us into their confidence, and I should say that this little clause deals with the matter unsatisfac- torily unless they are prepared to announce a large Amendment of the King's Regulations at the same time.

Attention called to the fact that forty Members were not present. House counted, and forty Members being found present—

* MR. URE (Linlithgowshire)

I wish to direct the attention of the House to an Amendment of the Annual Army Bill, which is being proposed for the first time. The Secretary of State for War apparently desires that the procedure of courts of inquiry should be altered, or rather their powers enlarged, so as to give them liberty to take evidence on oath. Now, what is the reason for that change, made so late in the day? Courts of inquiry have been held from time immemorial without any inconvenience having been felt about their inability to take evidence on oath. I have had considerable experience of evidence taken not only on oath, but without oath; and I think the feeling of all those who have had similar experience is, that you do not really reach the truth with greater certainty because a witness has been put on oath than when his evidence is taken without it. Of course it is always difficult to ascertain the truth on a matter of fact, but that is not because witnesses are deliberately and willingly telling what is not true; but rather because their views of what has taken place are coloured by the impression of the moment, by conversations which have passed between them and those connected with the incident between the time when the incident occurred and the time when they were put in the witness box. Really there is not so much difficulty in getting men to tell the truth as in getting them to divest themselves of prejudiced feeling and passion. My hon. and learned friend the Lord Advocate knows very well that, whether witnesses are on oath or not, they are very inaccurate in giving evidence on matters of fact which occurred at a period distant from the date of inquiry; and when we have had opportunity of dispensing with the oath, we have both been in the habit of using the liberty. It is perfectly true that some inconvenience has occasionally arisen when gentlemen from distant parts of the Western Hebrides have claimed the privilege of being examined through an interpreter, and in that way have sometimes succeeded in soncealing the truth rather than in elucidating the facts of the case. Except in these rare and somewhat exceptional circumstances, the Lord Advocate will agree with me, that we do not attach any more importance to the statement of a man who has taken the oath than to the statement of a man who has not taken the oath. I shall, of course, be told that it is impossible to prosecute for perjury unless witnesses are put on oath. I agree; but really that is a weapon which we all know is very rarely put in force, because it is exceedingly difficult to prove perjury. As far as my reading and observation are concerned, England is not in any different position from Scotland in that regard. The right hon. Baronet who preceded me in this debate says that the real difficulty in these courts of inquiry is to ascertain the truth on questions of competency or incompetency. Well, questions of competency or incompetency are always necessarily a matter of opinion, and, therefore, on such questions it is immaterial whether you put a man on oath or not in order to get from him his genuine views on the matter. You often say to a man that all you desire is to get from him his opinion on a certain state of facts that may have passed under his observation. Under these circumstances we are entitled to ask the Secretary of State for War what has occurred to lead him to propose this material change in the procedure of courts of inquiry. Personally, I am very much averse to an oath being introduced in inquiries of this kind. I am told that men do not attach the same weight and importance to an oath as they did in early times; and much more is that the case where the English form of procedure is adopted, and where the oath is taken in a very perfunctory fashion, very different, indeed from that in Scotland where there is much greater solemnity connected with the administration of the oath. But even in Scotland that greater solemnity does not seem to impress witnesses so much now as it did formerly. I have no doubt that the right hon. Gentleman will be ready to give us his reasons for making this mate- rial change in the procedure of the courts of inquiry.

* COLONEL BLUNDELL (Lancashire, Ince)

In old days when a prisoner of war returned to his regiment he was necessarily tried for desertion. This exposed the circumstances of his capture. Now the circumstances are very different. In the South African War a large number of prisoners had been taken, and I can quite conceive that the most convenient way to deal with them would be to bring them before a court of inquiry, and to put the witnesses on oath. I maintain that the oath is administered in the Army in a very different manner from what it is in the civil courts, and undoubtedly soldiers do attach more solemnity and value to the oath than civilians. The right hon. Baronet the Member for Forest of Dean spoke about the surrenders in South Africa, and referred to the word "shameful" in the Mutiny Act. If the commander of a fortress surrendered it without sustaining an attack upon the breach the surrender was regarded as shameful. I do not know that any precise line can be drawn as to whether these surrenders on hill-tops in South Africa are or are not shameful. I would hesitate very much to express any strong opinion on the subject until I have heard the views of officers who have served in that country. My impression is, that in these days of magazine rifles the strain on the nerves of soldiers is much greater than at any former period; and we should know the views of soldiers who have been through the campaign before we can express an opinion on the matter of any real value. In regard to general inquiries into the conduct of officers, I should advise the Secretary for War to be very careful. War is very far from being an exact science; and I think it is very desirable to leave it entirely in the hands of the Commander-in-Chief to hold or to avoid these inquiries which so many people are anxious to bring about. I feel assured that they may do our Army immense harm and a great deal of injustice to many officers.

CAPTAIN NORTON (Newington, W.)

I do not desire to detain the House at any length, because my right hon. friend the Member for the Forest of Dean has dealt with the question exhaustively and in a very lucid way. But in regard to these courts of inquiry, those of us who have had experience of them know that in ninety-nine cases out of a hundred they are held with reference to the loss of equipment, or stores, or matters of comparatively small importance. In those cases there is no necessity for an oath; in fact, an oath may complicate proceedings and prevent those engaged in the court of inquiry from ascertaining the truth. There is much in what the hon. and gallant Member said with reference to soldiers and the oath. I admit that more importance is attached to the oath by soldiers than by civilians. The part which is of importance now is that these courts of inquiry are about to be employed for the purpose of eliciting information with reference to matters of supreme moment to individuals and to the country at large, and as to matters that affect the discipline of the Army. My right hon. friend referred to what Clode says on the matter, namely, that to enable an officer who holds a court of inquiry to take evidence on oath gives him the opportunity of gaining full possession of all the points in the case. Now, I should suggest that a distinction should be drawn between courts of inquiry for the purpose of investigating the loss of stores and equipment, or minor matters, and those courts which are held for the purpose of ascertaining whether an officer, non-commissioned officer, or man has properly performed his duty. The question which was raised with reference to the word "shameful" in the Army Act leads me to say that it would be advisable, seeing the number of cases that are likely to occur in South Africa, if the Secretary of State for War were to take some steps to alter the Act so that he might be able more effectually to deal with that question. I come now to the point as to whether it would not be advisable to have more courts-martial. Of course, prerogative courts we must always have; but I would ask whether it would not be advisable to so alter the King's Regulations that there would be power, in the event of certain facts being brought to the knowledge of the officer commanding, to call a court-martial rather than a court of inquiry. There is always a difference between naval and military matters; but there are some cases where nearly the same circumstances may occur to a military officer as to the naval officer of a ship; as, for instance, when an entire unit, or company, or troop of cavalry is taken captive without any great show of fight. If the Secretary for War can see his way to promise such an alteration in the King's Regulations as would enable these cases to be investigated by a court of inquiry, or, if necessary, by the court-martial. I feel certain it would give great satisfaction throughout the Service.


The point raised by the right hon. Gentleman is undoubtedly a novel one. This change in the Army (Annual) Bill has been introduced, not merely from a desire which I really have to improve the Procedure, but also to meet to some extent views which have been expressed in the Mouse. I do not think it needs great deliberation to discover the necessity for the change. There are two classes of inquiry in the Army—one inquiry is by courts-martial and the other by courts of inquiry. The inquiry by courts-martial has not been very frequently in practice in the British Army, and it has often been very difficult to frame a charge which would come under the various heads of the Army Act. The theory in regard to courts-martial in the Army has been opposed to that held in the Navy.


Hear, hear. That is perfectly true.


In dealing with this court-martial question I would like to see that done away with. I think that an inquiry on oath, and to some extent of a public nature, is very often advantageous to the officer—it must tend either to convict him or to clear him—and there are a large number of cases in which it is desirable, in the public interest, that the officer should be brought before a court-martial and given a complete acquittal or should be convicted. But, undoubtedly, the present courts of inquiry require strengthening. The right hon. Gentleman has made various observations with regard to the distinction between the various courts of inquiry now held, but what is really important is to consider in what circumstances the courts of inquiry would be improved by the present Bill. Under Clause 52 of the Army Act you have courts of inquiry which deal simply with cases of absence without leave or desertion, with regard to which witnesses can be put upon oath. But in much more important cases brought belore courts of inquiry the witnesses cannot be put upon oath, and the Government desire that they should be put upon oath whenever it seems to the Commander-in-Chief that it is absolutely necessary and will add to the force of the inquiry. I think it is desirable from two points of view. First of all, it makes the witnesses much more careful about what they say, and, secondly, it gives much more importance to the finding of the court, or that of the Commander-in-Chief. At present you must have a court of inquiry for the purpose of elucidating the facts. But, as the right hon. Gentleman has pointed out, there is often great difficulty in holding the courts. That is so, and I am bound to say that, as between courts-martial and courts of inquiry, cases may occur in which it is necessary to exercise authority without either a court-martial or a court of inquiry. In cases of that kind, in which the conduct of an officer was such that the Commander-in-Chief was satisfied that he could not employ him again in the field, the military authorities should have power to dispense with the officer's services. I am sure the House will support me when I say that the life of every soldier is absolutely at the mercy of the officer under whom he is placed, and it is necessary that the military authorities should have full power in this respect. Where you can form courts of inquiry in these cases, I think it is very desirable that in the great majority of instances the Commander-in-Chief should put the witnesses on oath. I do not like the plan of holding two inquiries; but, of course, there are cases in which at a court of inquiry held on one officer prima facie evidence is produced in regard to another officer who might have been taken prisoner and, therefore, was not available at the time. In these circumstances it may be necessary to hold a second court of inquiry, subject to the reservation which I have made—the right of the military authorities to decline to continue to employ an officer in whom they have lost confidence. One point seems quite clear, and that is the desirability of making these courts of inquiry of a more, formal character. Each successive speaker has dwelt on the necessity of giving an officer a fair trial. But it may not be possible in every case to frame a charge on which the finding of a court-martial can be based. Take the case of a charge of "shamefully abandoning or delivering up a garrison." Those words may either be strengthened or weakened. There may be also cases which do not come under Sub-section 6 of the clause, more especially cases in which officers have raised the white flag. My own feeling is that whether an officer is justified or not in raising the white flag, he should not be deemed guilty of cowardice and brought to a court-martial, if, finding himself in a desperate situation with his force terribly reduced, he finds it necessary to surrender, after earning praise for the gallantry of his defence.


Hear, hear.


I do not think it ought to be considered a reproach to an officer that in circumstances of surrender of that kind he has been brought to a court-martial. I will take care to make the inquiry more formal, to avoid a multiplication of inquiries, and to give to each officer the fullest opportunity possible of being heard in his own defence. I will just add one word as to the length of time that should elapse before the inquiry is held. I think in many cases it would be the most humane and considerate course to hold the inquiry as soon as possible rather than to allow an officer to remain for many months under the suggestions that are made in the case of surrenders which cannot often be disproved. I am against keeping officers for any lengthened period in a condition of suspended animation, and therefore I think the inquiries should be made as quickly as possible; and I say so the more because when an officer is dealt with after a long period of suspended animation, it might inflict far greater injury on him in his social position. I hope the House will now give a Second Reading to the Bill. I believe the clauses in the Bill are admirably calculated to carry out the intentions expressed by the Government in deference to the opinions expressed on both sides of the House, and will produce a better administration of the military law.

SIR WALTER FOSTER (Derbyshire, Ilkeston)

desired to elicit some statement with regard to the King's Regulations in reference to persons being taken prisoners of war. As the regulations now stood, there must be two inquiries, and some alterations would have to be made in order to obtain a single inquiry. He hoped the right hon. Gentleman would be able to give some reassurance upon that point. He quite agreed that all these matters were more necessary now than in times past, and of necessity there would be an increase in the number of inquiries. The power the right hon. Gentleman took under the clause of the new Act, would be, useful in shortening the period of suspended animation to which the right hon. Gentleman referred, although the process might not be so simple as it at first appeared, because there would still be two classes of inquiry. He thought the House ought to have some assurance as to whether he intended to alter the King's Regulations.


Yes, certainly. The Regulations will be altered in accordance with the views I have expressed.

MR. COURTENAY WARNER (Staffordshire, Lichfield)

said that in the opinion of a great many Members it would be better to substitute, courts-martial for the courts of inquiry, because in that case the officer had an opportunity of presenting his case to the court; whereas in a court of inquiry there was no safeguard that a man might not be convicted of making a mistake, or of a dereliction of duty, and have his whole career ruined without having an opportunity of defending himself, or answering the charge against him in any way. It had always been the practice in the Navy to hold courts-martial, and he thought as a general rule the same practice should be adopted in the Army, although, no doubt, in some cases a court of inquiry was necessary. It was often said that every officer had a right to demand a court-martial, but that was only partially true; in many cases there was that right, but in many there was not. If an officer was dismissed the Army for neglect of duty after the holding of a court of inquiry, he had no power to demand a court-martial. He hoped the promise to alter the King's Regulations would be carried out on a somewhat wider scale than the mere making of the courts of inquiry courts where evidence could be taken.

Question put, and agreed to.

Bill read a second time, and committed for Thursday, 18th April.