§ Order for Second Reading read.
§ Motion made, and Question proposed, "That the Bill be now read a second time."
§ * SIR CHARLES DILKE (Gloucestershire, Forest of Dean)said the main point which had to be made with respect to this Bill was a most curious one. The Army Act was amended each year by such a Bill as this, but the Act itself was not reprinted, and the result was that it was constantly wrong and could not be found anywhere in a proper form except in the Government Orders and books issued by the War Office, and then it was not per feet At the present moment the latest reprint of the Army Act in any form at all did not contain the Amendments made in it by Army Annual Bills of recent years; but the latest reprint was contained in "The Manual of Military Law" which contained the Amendments which had been made up to the year 1889. Those made since 1889 had not been printed in any Act, and the Amendments it was proposed to make by this 136 Bill were not applicable to any printed Act and were therefore utterly unintelligible. By the courtesy of one of the librarians of the House he had a copy of the Manual of Military Law which contained in red ink the Amendments made in recent years, but that did not carry the matter much further, because it did not show where the Amendments went into the text, it being impossible to do so for the reason that in many cases the Amendment altered the lines of the Act as printed. Frequent requests had been made to the Government by Members of the House to have the Army Act reprinted whenever it was changed by Amendments made, and if a promise was given by the right hon. Gentleman that that should be done it would not be necessary to say anything further on the subject. The necessity for it being reprinted was shown by what had taken place in Canada. Sir Frederick Borden, in introducing the new Militia Act of Canada, which consolidated all the military laws of Canada, asserted that that Act, with all the changes that might be made from time to time in this House, was part of the law of Canada, and such a 137 suggestion must be news to many Members of the House. Many debates had taken place both in this House and in another place which went to show that the War Office itself had never very carefully followed the law as laid down by the Army Act.
The Bill now before the House contained, and in some degree amended, the law with regard to Courts of inquiry. Courts-martial, and matters discussed in the House as recently as the previous year. He would not enter into the details of the cases discussed: it would be sufficient to say that the two discussions which took place in another place in regard to the Kinloch case brought to light the extraordinary want of knowledge of the law in all who took part in those discussions. In the Kinloch ease it was assumed that the whole of the provisions of the Army Act were applicable to the proceedings, and the debate in the House of Lords was carried on with hardly a reference to the fact that the provisions of the Act were utterly inadequate to the case and had no bearing on it whatever: that the inquiry was not in fact such an inquiry as was contemplated by the Act. The Courts of inquiry which had attracted the most attention were not under this Act; not, in fact, legal Courts of inquiry at all. Members of both Houses of Parliament who had heard of regulations being amended by these amending Bills year by year, and applied to Courts of inquiry, were naturally under the impression that every military Court of inquiry to which attention had been drawn, was held under those regulations, and when they found there were grave breaches of the law based on Statutes or upon regulations based on Statutes, they naturally jumped to the conclusion that some illegality was being practised, whereas these Courts of inquiry were not constituted under the Army Act at all. There had been frequent discussions as to whether it would be possible to simplify that state of things and to get rid of that alarmed public opinion which was excited by the unfounded belief that in these cases the law had been violated, by having only formal Courts of inquiry—by reducing the proceedings in all such cases to statutory proceedings under these Acts. The difficulties of applying the principles of 138 the Army Act to Courts of inquiry in time of war were insuperable. In time of war it was essential for commanding officers to take action quite apart from formal Courts of inquiry which could not be held because of the impossibility of bringing all the witnesses together. It was difficult to say that a commanding officer who was going to take such action should not take such means as he thought proper to inform his own mind as to the action which he was going to take. But as regarded times of peace the late Secretary of State, the present Secretary of State for India, declared to the House in 1901 that it was the desire of the Government to discourage the holding of prerogative Courts of inquiry and it was hoped, said the right hon. Gentleman, in times of peace to hold Courts of inquiry only in the formal manner prescribed by the Act. With regard to the case which he (Sir Charles) had mentioned, the point was that both Houses of Parliament were under the impression that the law had been violated, but what had in fact occurred was that the form of a Court of inquiry had been observed in a proceeding which was not a Court of inquiry at all. The same difficulty which had arisen with regard to military Courts of inquiry had arisen in regard to a matter which it was not in order to discuss on this occasion.
Considerable difficulty arose in similar cases of Courts-martial relating to the Auxiliary Forces. In time of war, when the Auxiliary Forces were incorporated with the Regular Forces, they were amenable to the military law under the Army Act, but not otherwise. In times of peace the Volunteers were dealt with under a wholly different series of Statutes, their Courts of inquiry being held under the Volunteer Act of 1863. Nevertheless the rules of procedure by which those Courts were regulated were drawn under the Army Annual Acts and largely followed the language of those Acts. It was an extraordinary fact that Volunteer Courts of inquiry appeared to be in the habit of taking evidence on oath without having authority to do so, unless the authority was to be found in the Army Acts. Nor had they power to pronounce sentence, and yet this also had been done. In the correspondence between the persons affected in two such cases and the War Office, it was laid 139 down by the Department that the rules of procedure based on the Army Annual Acts were applicable to Volunteer Courts of inquiry, but that idea was not conveyed by the legislation itself. This was a point to which he invited the attention of the Attorney-General, his suggestion being that it was entirely illegal for these Courts to take evidence on oath unless the power was directly given by Statute. He could not help thinking that if they had a Judge Advocate-General in the House—a proposal which he heartily supported—these matters would receive more attention than at present. In a case referred to by the hon. Member for the Exchange Division of Liverpool a lieutenant had been declared by a Volunteer Court of inquiry to have been guilty of insubordination, and he submitted that the Court had no legal power to give such a decision. If it was pretended that such a power existed it could be only under the Army Act, which was not applicable to Volunteers in times of peace when they were not subject to military law.
The only other subject to which he desired to refer on the present occasion concerned the language of the Bill and of the Amendments for the present year. The proposals with regard to protectorates dealt with a delicate and difficult subject, because there was no general law and no general status of protectorates. No two protectorates were exactly alike. The point he wished to urge was that the words placed in the Bill were directly opposed to those rendered necessary by the Interpretation Act, and that the language of the Statute as altered by the present Bill would conflict with the language of the Interpretation Act. These protectorate cases were extremely difficult, and there was a direct conflict between the highest authorities on the subject. Sir Henry Jenkyns had distinctly stated that a protectorate was not dominion, whereas in the case of the Jameson Raid the jury found that the Bechuanaland Protectorate was a portion of the dominions of the Crown. He suggested that in this Statute it would be wise to follow the language of the Interpretation Act, which was good enough for every other purpose, and ought to be good enough for the War Office in this matter.
§ MR. CHARLES HOBHOUSE (Bristol, E.)complained that there was no copy of the reprint of the Act available to Members later than that authorised by the House in 1893, and as there was only one copy in the library, it was absolutely impossible to make sense of the Amendments proposed by the Secretary of State or to ascertain exactly what the position of the Army Act really was. He hoped the Secretary of State would take steps to remedy that state of things. According to the preamble the Act was brought into force at several different dates. Doubtless when the Act was originally introduced, there was good reason for such an arrangement, but the reason no longer existed, as steamships and the electric telegraph had annihilated distance, and rendered it perfectly possible to bring the Act into force on the same day throughout His Majesty's dominions. He suggested two reasons for the proposed alteration in Clause 5: one was the question of recruiting, and the other was that put forward in the official explanation. It was clear that if the Department had power to transfer men, in lieu of imprisonment, to some other portion of the force, certain recruiting difficulties in some of the corps would be surmounted, but some good reason from a military point of view ought to be given for these compulsory transfers. The proposed changes in Clause 7, on the question of deductions, were doubtless intended to regularise a practice already in existence. Illegal deductions were constantly made, and they were acquiesced in by the officers for disciplinary reasons. On Clause 8 he asked why the Secretary of State proposed to double the amounts which might be stopped from the pay of non-commissioned officers and men for the maintenance of their wives and legitimate children.
MR. GIBSON BOWLES (Lynn Regis)said that this measure was a very old friend of his. The Army Annual Act was, he believed, first passed in the year 1881. What they intended to do was to renew that Act year by year by a renewing Act. But almost every year since 1881 it had not been a question of renewing the Act and the powers of the Government, but of amending it, and the result was that they had all these Amendments which had 141 now to be read into the original Act, and it almost surpassed the power of any ordinary human being to understand the Act, because it was necessary to read some thirteen or fourteen Acts of Parliament in order to get to know the actual state of the law. This was another example of legislation by reference, against which ho had so often protested. It was allusive, illusive, and elusive legislation, and the House was being asked to pass an Act which was absolutely unintelligible. The simple remedy was to let the Army Act be reprinted in full every year, an I then they would have before them some intelligible form of the Act. He asked that the Government should reprint the Army Annual Bill as it stood at present, with an addendum if they so desired; but at any rate let them have the Act in a shape in which they could understand it. Clause 13 imposed a fresh obligation upon keepers of victualling houses, and he wished to know why that was necessary at the present time. They were now required to provide one extra bed, and he wished to know if any addition was going to be made to the sum allowed to them, because they should not be called upon to provide an extra bed for the soldiers for nothing. He did not know why a provision of this sort was necessary when barrack accommodation was very much greater than it had ever been before. The practice of referential legislation was being carried to an undue extent in this Bill.
§ MR. COURTENAY WARNER (Staffordshire, Lichfield)said the alteration now proposed was much larger than usually took place in this Act, and when there was such a large number of alterations he thought the Act ought to be reprinted. At present, great inconvenience was caused to those who had to use the Act, for they had to stick in slips of paper from year to year. This was a very serious matter for all those who had to deal with the Act, and therefore it ought to be reprinted. This year this was especially necessary. He trusted that some explanation in regard to the point raised by the right hon. Baronet the Member for the Forest of Dean would be given, because it seemed to be a very serious drawback and some provision ought to be inserted in order to remedy it. It was always difficult, in dealing 142 with the Volunteers, to have such uncertainties existing, and if they remained Volunteer discipline would be Made still worse than it was at the present time. The changes now proposed were not mere details, but considerable alterations. He did not see why such a question as was now provided for should be asked in the case of the forfeiture of the pay of the soldier, and the very reverse was done in the case of officers. In Section 4 the alteration was that the soldier was to be told that he might demand a Court-martial, but in Section 12 certain offences deprived the officer of the right of a Court-martial. It was quite true that as a rule these stoppages had been very often made illegally, but he did not think it improved the case at all to insert a section to make it legal, for they were cases which ought certainly to go before a Court-martial. An officer had a right to demand a Court-martial when a heavy penalty was put upon him. The alteration proposed in Section 12 was a very serious one and ought to be looked into, and more explanation ought to be given beyond the mere fact that officers had been mulcted illegally. He thought that custom ought to be stopped. He did not think Section 7 was necessary, and perhaps they would have some better explanation of it than was given in the note. He did not see that such a provision was necessary at all, for the officer had a right to ask for a Court-martial. It was quite unnecessary to make such an alteration, because officers ought to be tried by a Court for such offences and not by some authority at the War office. The question whether the damage had been done by the negligence of the officer was not one which ought to be decided by an official but by a court. With reference to paragraph 12 he did not see why the schoolmaster was not to be reduced because he did not enlist as a private. In his opinion the schoolmaster ought to be reduced in the same way as other men in the Army and he did not quite see what this section was meant to do. The schoolmaster ought to be treated In the same way, and there ought to be the power of reducing him just the same as in the case of other people who committed offences. He considered the printing of the Act was so serious a matter that they 143 ought to insist upon having some definite pledge from the Government upon this point.
§ * COLONEL WELBY (Taunton)said he strongly supported the proposal made by the right hon. Baronet the Member for the Forest of Dean that this Act should be printed. He had tried himself to fit in the Amendments to the Bill this year with those of previous years, but he had entirely failed to understand them. No doubt there were many difficulties about printing the Act. There were so many difficult questions affecting the officers, non-commissioned officers, and men of the Army, contained in the Army Annual Act that before passing Amendments the House ought really to know what they meant. They should also be confident that those who represented the War Office did themselves know what would be the effect of the Amendments. In regard to Clause 4 referred to by the hon. Member for Lichfield, his recollection was that, when he was a commanding officer, whenever a man had his pay forfeited he had the right of appeal to a Court-martial. He did not see why that should not be enforced and made clear by the Amendment now proposed. It seemed to him that the introduction of the Amendment on Clause 7 might possibly lead to great injustice being done to officers in future. He thought the House ought to have full proof of the necessity for this alteration. Those who remembered the Army years ago knew that if there was a nail hole in a wall for which an officer paid 2d., that officer would find the hole still there if he returned to the barracks ten years afterwards and again paid for it. It was a source of permanent income to the barrack master. The tendency now was to have more in a barrack room than bare walls, a coal-scuttle, a table, and two chairs. The rooms were going to be furnished and a charge made. Under the new system of administrative districts and Commanders-in-Chief there might be very heavy charges against officers on account of the furniture from both these authorities. Were these charges to go simply to the Secretary of State for War and was he to have absolute dictum in saying that an officer was to pay whatever was charged 144 against him? Was the officer to have no appeal to a statutory Court of inquiry or to a Court-martial? The Amendment would open the door to very great wrong and injustice. The Secretary of State could not be expected to look into every individual case, but surely an officer who was aggrieved ought to have the right of appeal to his own peers. Before this was passed into law they ought to have strong proof that it was necessary. Reference had been made by the hon. Member for King's Lynn to the provisions in regard to a bed for each soldier. He could tell the hon. Member that if it had been his fortune to march as a cavalry soldier through Ireland he would think that the Amendment was very necessary. He had known cases in which three or four men had been compelled to sleep in one bed, and sometimes that bed was a very dirty one. In some instances, the men had preferred to go to the stables and sleep on a little straw rather than occupy the beds which were provided for them. He thought it was absolutely necessary that the officer in command should be able to say that every man who was billeted should have a bed to himself.
§ CAPTAIN NORTON (Newington, W.)said he hoped the Secretary of State for War would give some answer to what was brought forward by the right hon. Gentleman the Member for Forest of Dean. The Secretary of State for War was doubtless aware that there was a very marked difference between an ordinary Court of inquiry, which was really a prerogative Court, and a Court of inquiry under the Statute. What did they find? Invariably a Court of inquiry was held, and he was perfectly certain that nine-tenths of the officers in the Army were not aware that there were two distinct Courts—one a prerogative Court, which was not properly a Court at all, and the other a statutory Court which carried very much greater weight. The Courts of inquiry which took place during the recent war in South Africa were practically not Courts at all. They were Courts held purely on the responsibility of the Commander-in-Chief, or other superior officer, for the purpose of gleaning information. He was sure that the Attorney-General would agree 145 with him in saving it was of supreme importance that they should know where the law ended and where prerogative began. He suggested that there should be schedules of those matters which should be dealt with by Statute. Those who had served in the Army were aware that there were numerous cases in which it was absolutely necessary for the commanding officer to obtain certain information before he ordered a Court-martial. He was not an advocate for ruling out altogether the prerogative Court-martial, but he thought it ought to be laid down clearly in this Act so that officers might know what their powers were. He asked the Attorney-General to give the House some information as to the Courts of inquiry which had been taking evidence on oath with reference to the Volunteers. It appeared to him that the Courts which had been dispensing justice in connection with the Volunteers had not been acting legally During the war in South Africa the suggestion was frequently made that officers in the Army should be dealt with in precisely the same way as officers in the Navy, namely, that they should have the power under all circumstances of demanding a Court-martial. He thought it would be well to lay down definitely that officers should have that power. As to charges made for barrack damages, he could state that these were very irritating to officers, non-commissioned officers, and men. There was a feeling on the part of private soldiers that they were mulcted in considerable sums which found their way into the pockets of certain officials.
§ COLONEL SANDYS (Lancashire, Bootle)said it seemed to him that the question of the position of the Courts of inquiry was somewhat imperfectly understood, and the few words he wished to address to the House were founded on personal experience. It should he clearly understood that formerly there were two Courts—a Court of inquiry, and a Court martial. The object and raison d'étre of the Court of inquiry was to ascertain whether or not, in a particular case a Court-martial should be held or not. The general officer commanding directed the Court of inquiry to assemble. But now there had cropped up what was called a statutory 146 Court of inquiry, which seemed to be sort of inferior Court-martial. He hoped that under no circumstances would the House consent to the original Court of inquiry being done away with. It could assemble and take evidence in time of war, and he therefore hoped that this prerogative Court would be fully recognised. It was always an understood thing that a Court of inquiry could give no decision in a case before them, but should confine themselves to obtaining evidence. The law, however, was in such a confused state that nobody could understand it.
§ * THE SECRETARY OF STATE FOR WAR (Mr. ARNOLD-FORSTER,) Belfast, W.said it had been pointed out by his hon. friend that there was an accumulation of Amendments, but he ventured to trespass on the indulgence of the House by asking it to give consideration to these Amendments, inasmuch as they were likely to lead to the advantage either of the officer or of the soldier. There was no object beyond a benevolent intention contained in the clauses he had submitted as Amendments to the Army Act. The complaint which had been made was quite unfounded as to the form in which the Act was presented to the House and to the Army. He had anticipated the wishes of the House and had made arrangements for a reprint of the Act in its amended form. It would be advisable, he thought, to distinguish, not only the. Amendments which might be passed this year, but in some other way the Amendments made in the Act since the last general reprint had been issued.
§ COLONEL WELBYasked whether the clauses affected by these Amendments could be printed before the House went into Committee on the Bill.
§ * MR. ARNOLD-FORSTERsaid he thought the clauses affected by these Amendments could be printed in extenso in the form of an addendum. He might say that as soon as he became aware of the condition in which the law stood he had taken steps to give effect to the intention which all hon. Members had at heart by the amendment of the law which had so important a bearing on 147 the liberties of the soldier. The hon. and gallant Member for Bristol had asked, in reference to Clause 5, why there had been a diminution of the period of six months limiting the right of transfer of a soldier from one unit to another. He could assure the hon. and gallant Gentleman that there had been no sinister design imported into that clause by the recruiting department. It was desirable to have that power of transfer, but he was satisfied that it would have to be done with the full assent of the House as a matter of principle. Some attention had been called to the operation of Clause 7, which regularised the existing situation in respect of reduction of officers' pay. The practice was already sanctioned by Royal Warrant, in the interest of officers. Furniture was now supplied for the officers quarters: and it was thought desirable that the power should be exercised under Statute. He really believed the effect of the provision would be for the protection of the officers, but cases might arise where officers would have these questions adjudicated upon without the formality of a Court-martial. A question had been asked in regard to schoolmasters, and as to why a difference was made between classes of schoolmasters. There were two classes of schoolmasters in the Aimy—those who had enlisted as soldiers, and had been promoted as schoolmasters with the rank of warrant officer; and those who had entered the Army as schoolmasters from civil life, and who also held the rank of warrant Officer, In the first place, it had been felt that it was an injustice to the soldier, and was not in the interest of discipline, that one man should be exposed to one set of penalties, and the other to another set of penalties. Thus, they were regularising the situation by putting the two classes on the same footing. Attention had been called to the question of Courts of inquiry. He should like to point out that he did not think there was any ambiguity, as had been suggested, with reference to these Courts of inquiry. The nature of a Court of inquiry was described in Part II. of the Rules of Procedure of the Army. There was laid down quite clearly what the nature of a Court of inquiry was, and 148 what were the limits of its prerogatives. It was stated that;—
A Court of inquiry is an assembly of officers directed by a commanding officer to collect evidence and report with respect to a transaction into which he cannot conveniently himself make inquiry.Such a Court, therefore, had not in strictness any judicial power; it could only collect evidence. It would undoubtedly be a great gain if Courts of this kind were not to express opinions affecting the character of officers, but should confine themselves to matters of fact; and he hoped there would be no ground in future for the complaint that these Courts exceeded their powers. The hon. Member opposite had referred to the last clause of the Amendment dealing with the day on which they would come into force. It was a most reasonable suggestion that the Act should come into force everywhere, if possible, at the same time. He would not give a pledge on the subject until he had obtained an expression of opinion on the matter. It was necessary, however, that there should be an interval between the date of the passing of the Act and its being put into operation here, and, say, its promulgation in such distant places as Hong-Kong. He would make inquiry as to whether the period could not be shortened in view of the better means of communication which prevailed since the Act was originally introduced.
§ * SIR CHARLES DILKEsaid he had asked a specific Question in regard to Volunteer Courts of inquiry.
§ * MR. ARNOLD-FORSTERsaid he was aware of the case to which the right hon. Baronet referred. He understood that these Courts of inquiry had proceeded as if they were constituted under the Army Act. That was not the fact. They had no power to administer an oath or pronounce a sentence. He could understand that if an endeavour had been made to administer an oath to any person coming before a Court conducted by a Volunteer officer without the sanction and approval of the War Office, that person might refuse to take the oath, and there was no power to compel him to take it. There was no suggestion that those Volunteer officers who sat on a Court of inquiry had exceeded their powers, or had done any 149 injustice during the course of the proceedings. It was not competent for him to review the decisions of a Court of inquiry which had been held under the sanction of the War Office: On the real signification of taking an oath in giving evidence at these inquiries he would suggest that the question should be raised in Committee, when he would give further information.
§ * SIR CHARLES DILKEsaid he doubted whether he should be in order in raising the question in Committee, but he would place the letter to which he had referred in the hands of the War Office, and perhaps the Attorney-General would give an opinion.
§ MR. ARNOLD-FORSTERsaid he would deal with the letter. The point appeared to be this. It was necessary to conduct these Volunteer inquiries according to some procedure, and the procedure which had recommended itself to the officers was that which obtained in the Army.
§ * SIR CHARLES DILKEsaid the Volunteer Courts had assumed that they had power to administer the oath, but they acted contrary to the Statute.
§ * MR. ARNOLD-FORSTERsaid he would not carry the matter further at that stage, and he trusted that the House would now pass the Second Reading of the Bill.
§ MR. DALZIEL (Kirkcaldy Burghs)said he was surprised that the Attorney-General had not responded to the definite request made to him by the right hon. Baronet the Member for the Forest of Dean. He did not understand why the reply should be postponed. Were those proceedings regular or irregular; were they legal or illegal?
§ THE ATTORNEY-GENERAL (Sir ROBERT FINLAY,) Inverness Burghssaid it would be better to have the specific circumstances inquired into before giving an opinion in regard to them. Undoubtedly the power to administer an oath must be legalised by Statute. He understood that at these Courts of inquiry no sentence was pronounced. Of 150 course, if a sentence were pronounced it would be a different matter altogether. As he understood the case, the Court of inquiry found that a particular officer had been guilty of a reprehensible offence, but there was no question of pronouncing sentence.
§ MR. DALZIELsaid he was obliged to the learned Attorney-General for the indirect reply he had given, but it did not proceed far enough. Was, or was not, the taking of the oath at those inquiries legal? The learned Attorney-General did not indicate any statute legalising that procedure. It was a more serious matter than the Government appeared to imagine, and he was surprised that the War Office had allowed the uncertainty to continue.
§ * MR. ARNOLD-FORSTERsaid there was no question of sentence resulting; simply a report was made to the War Office which was the executive authority in the matter.
§ MR. DALZIELsaid that the Attorney-General might be technically correct, but the report of the Court was an indirect sentence in itself, because on it was based the sentence which was ultimately passed by the War Office. He thought the time had arrived when some directions should be given as to how such inquiries should be conducted. A very serious case had come under his personal notice, and it was surely due to the Volunteers that they should know exactly where they stood in regard to this matter. The Secretary of State for War stated that a witness had the option of being examined on oath or not. What would be the position of the witness who objected to be sworn? He might be a very important witness, but if not sworn, his evidence would be regarded as absolutely without value. Therefore, the suggestion of the right hon. Gentleman was not one to which any importance could be attached, because it would be impossible to carry it into effect. The right hon. Gentleman stated only the other day, in reply to a Question, that three Volunteer commanding officers had found Lieutenant Green guilty, of insubordination, that the military authorities had called upon him to resign, and that, he refusing, 151 steps were taken for his removal. Practically the Court asked him to resign. It appeared to him that before the Bill passed its Second Reading the House ought to have from the Attorney-General, or some representative of the War Office, a definite declaration as to how the law stood in regard to those inquiries. It was a farce and an absurdity that the oath should be administered without any legal authority. It was now practically admitted that the inquiries were conducted in an irregular manner.
§ And, it being half-past Seven of the clock, the debate stood adjourned.
§ Debate to be resumed To-morrow.