HC Deb 17 March 1904 vol 131 cc1477-92

Order read, for resuming adjourned debate on Question [17th March], "That this House doth agree with the Committee in the Resolution, 'That a sum, not exceeding £9,746,000, be granted to His Majesty, to defray the charge for the Pay, Allowances, and other Charges of His Majesty's Army at Home and Abroad (exclusive of India) (General Staff Regiments, Reserve and Departments), which will come in course of payment during the year ending on the 31st day of March 1905.'"

Question again proposed.


said that when the Sitting was suspended he had been discussing item C. He thought that that item could be considerably reduced when the projected reforms came into operation. In regard to recruiting expenses, some of the Militia regiments belonging to the large counties were overflowing with recruits, and he thought that these should be handed over to districts where the population was less, and the recruiting low. There was another item on which a saving might be made, viz., item O, for the establishment of gymnastic instruction. They had now got to a stage when gymnastics had become a fad. He did not mean ordinary extension motions, but the enormous amount of fancy gymnastics on which he thought a good deal of time of both officers and men was wasted, because they were apt to become merely stage performances. He thought that officers would be better employed at drill than in a three months course of fancy gymnastics. All he wanted to press was that there should be economy wherever it could be practised. The country was in great difficulties, although the Government did not appear to realise it. He believed that the Secretary for War, himself, was in favour of greater economy which would not hurt the Army; and he hoped he would secure the help of his colleagues in that direction. He hoped the Army would be rendered efficient and that the country would get its money's worth instead of paying, as at present, an enormous amount for an Army which was inefficient considering its enormous cost.


said there was a question which arose on this Vote to which some little reference was made on the Motion that the Speaker leave the Chair, and which he thought was worth a little more lengthened consideration. He referred to the present position of the office of Judge-Advocate-General and to the provision made for the discharge of the important duties which attached to the position. The discussion became opportune by reason of the recent death of Sir John Scott, who had acted as Deputy-Judge-Advocate-General for some years, and whose post was now vacant. It was important, while that vacancy continued, that, if possible, some indication of opinion should be given to the Secretary of State for War with reference, not merely to the selection of a successor to Sir John Scott, but, if he should think it desirable, to the whole reconstitution of the office as it was now occupied. The question was one of considerable constitutional gravity. The general proposition he should invite the House to accept was that the post of Judge-Advocate-General ought to be held by some one who was not merely a Minister of the Crown, responsible to the Crown, but who was also directly responsible to Parliament for the discharge of the duties of the office. The subject had been considered by Committees of that House in 1860, 1868, and 1888, and expressions of opinion had been given with reference to the character of the office, the nature of its duties, and the qualifications of the officer selected to discharge those duties. It was now clear that the Judge-Advocate-General was a Minister of the Crown responsible to the Sovereign for the discharge of the duties attaching to his office, and that he held the office of a Privy Councillor in order that he might give advice personally to the King. He was responsible to no other person, and the advice which he gave was given entirely upon his own responsibility. He was not responsible to anyone connected with the War Office. He advised entirely on his own responsibility, being guided solely by his conscientious view of the duties he had to discharge.

When one considered the character of the functions which attached to the position, it became of obvious importance that there should be some practical responsibility to Parliament. In the first place, the Judge-Advocate-General was the Minister of Justice in regard to the Army. He was responsible for the constitution of every Court-martial, and he had to decide whether or not a particular case fell within the scope of military law. He regulated the procedure of all courts-martial, and when they had arrived at their decision, he examined the evidence on which a conviction rested and advised the King on the question whether the conviction should be confirmed or quashed. He also considered the sentence attaching to the offence and gave advice as to whether it should be approved or diminished. In the second place, ho was the law officer, in military matters, of the Government, and was constantly called upon to give advice to the Commander-in-Chief and the Secretary of State for War with reference to military duties which touched upon the law. Therefore, in those respects he was in a sense an executive officer combining in his own person quasi-judicial functions. His contention was that an official holding such a position ought not to be left responsible only in an indirect and vague way to that House, and that he ought to acknowledge the same measure of responsibility which was acknowledged by every other Minister of the Crown who gave direct advice to the Sovereign and who was responsible for that advice. That proposition had been affirmed by several Committees of the House which had inquired into the matter. Sir John Mowbray, who had very great experience, expressed before the Committee of 1868 the opinion that it would be a great advantage if the Judge-Advocate-General felt that he was responsible to Parliament for every case that came before him, and that it was desirable that he should be directly responsible to Parliament for the advice he gave. Further, he said that the Judge-Advocate-General ought to remain as a Court of Appeal, and that it was advantageous that there should be an individual holding the position of Judge-Advocate-General who would be entirely independent of the military authorities, and who would take an impartial view of every case. That was the opinion of Sir John Mowbray, who at one time occupied the position himself.

He would now ask the House to consider how the office was held at present. Sir Francis Jeune was a Judge of the very highest character. He was invited some twelve years ago to accept this position to which no emolument of any sort attached. He had exacting and absorbing duties to discharge in his own judicial office; but with the public spirit which the House would not be slow to recognise, he accepted the highly responsible task of undertaking the discharge of the duties of Judge-Advocate-General in addition to the judicial functions to which in the ordinary course he was obliged to apply his mind. The discharge of those services without any kind of emolument placed the State under the greatest obligation to the eminent Judge who, at the request of a Minister of the Crown, accepted the position of Judge-Advocate-General twelve years ago. He had had the assistance of a most highly qualified and eminent gentleman, Sir John Scott, who for many years acted as Appellate Judge in Egypt and was afterwards a Judge in India. He was a most gifted and qualified person to occupy the position, and the duties of the office were efficiently discharged for some years by the two gentlemen who held the position of Judge-Advocate-General and Deputy-Judge-Advocate-General. But the objection to the present system remained, notwithstanding the fact that the personal qualifications of the two gentlemen mentioned were exceptionally high. Sir John Scott was now dead and a successor would have to be appointed. But when the appointment was made the House would still be face to face with the fact that under the present system, so far from getting direct Parliamentary responsibility, there was no Parliamentary responsibility whatever, except in some indirect way. The Judge-Advocate-General was not a Member of this House or the other House, and he could not be interrogated as to the reasons which actuated him in giving advice. He was not subject to the censure of this House because he received no emolument; and the House could not express any opinion as to his action. Therefore they had to deal with a highly-placed official charged with the administration of justice in the Army who had no direct responsibility to this House. It might perhaps be said that the Government were in some way responsible for the Judge-Advocate-General. He was quite sure that the Prime Minister would repudiate that responsibility, because he was not a member of the Administration. The Secretary for War was not responsible, because the Judge - Advocate-General advised him on his own initiative; and the Secretary of State had no voice in that advice. The Commander-in-Chief was not responsible except to the extent to which he might adopt the legal opinion of the Judge-Advocate-General, who was thus lifted into a sphere beyond all criticism. He was a Judge and a Judge could not be criticised in regard to his judicial duties; and, therefore, it would be exceedingly difficult for this House to call attention to any advice that he might give. He enjoyed a practical immunity from all Parliamentary responsibility and all Parliamentary censure which was possessed at present by no other Minister of the Crown. That was an unique and anomalous position.

It was a primary rule of the Constitution that every Minister of State who advised the Sovereign should be directly responsible to this House for the advice he gave. That rule was essential for the protection of the Sovereign, and for the efficient administration of all the Departments of the State. The Prime Minister was responsible for the advice he gave, and the Home Secretary, when he advised regarding the administration of justice and the exercise of the prerogative of mercy, was responsible to the Sovereign alone and to tins House. Everywhere, it would be found, without exception, that all Ministers of the Crown having direct access to the Sovereign were directly responsible to this House for the advice they gave. It was only by enforcing that rule that they could maintain the maxim of the Constitution, "The King can do no wrong." They had at present a very great anomaly in connection with the office of Judge-Advocate-General. He would ask the House to look at the matter from a practical point of view. It was a gross anomaly that justice should be administered among a large section of the population under military law without any kind of appeal being possible and without any method by which an injustice, however gross, could be corrected. The matter might pass under the review of the Judge-Advocate-General but he had not heard the evidence and merely considered the notes taken at the trial, and after an independent investigation he came to the conclusion whether the verdict ought to stand or not. He might quash the verdict or might reduce or annul the sentence. That was not the function of a Court of Appeal. Every Court of Appeal acted after hearing the parties, but the function of the Judge-Advocate-General was exercised in the absence of the parties and no new facts were brought before him. Therefore, there was no appeal in the ordinary sense, and if a case of injustice arose there was no remedy. Not being a Member of the House the Judge-Advocate-General could not be called upon to give the reasons for his decision, and if the Secretary of State for War was invited to explain, his answer would be that it was not a matter for his Department and that the Judge-Advocate-General was reponsible to the Sovereign alone. There was no appeal to the civil Courts, as decisions had made it clear that the action of Courts-martial however wrong and however perverted could not be reviewed by them. Therefore all recourse by way of appeal to this House or by way of action in Courts of Law was closed to a large section of the community. This was a grossly anomalous state of things. In the rebellion in Canada, in the Jamaica troubles which led to the trial of Governor Eyre, and even in South Africa, where Lord Kitchener had been most ably advised, questions arose as to the administration of the Courts-martial; questions as to nationality of the accused and whether individuals were to be dealt with by military law or whether they should be handed over to civil tribunals. Yet, although all these nice and delicate questions arose, the action of the Judge-Advocate-General could never form the subject of legitimate discussion in the House, because the person responsible for the decision of these questions was neither himself a Member of Parliament, nor did he receive any emoluments. He reminded the House of a case nearer home, where an officer was tried quite recently for theft of money from the coat of an inferior officer, and the case was retried at the instance of the Judge-Advocate-General He was not for a moment challenging the propriety of the retrial, he thought it was a right step to take, but, supposing he had not directed him to be retried and supposing that in the opinion of the House a retrial ought to have taken place, how could the question have been raised? He doubted whether, under our present system, even the injustice done to Dreyfus by Court-martial could have formed the subject of investigation by the House; he doubted, moreover, if any case, under the administration of the present law, could form the subject of Parliamentary investigation and criticism, while they continued in the office of Judge-Advocate-General a gentleman who, how ever eminent and qualified and distinguished he might be, yet lacked the all-important feature and qualification of Membership of Parliament, receiving an emolument as a Minister of the Crown.

What was the practical solution? Well, as he had pointed out to the House, the office of Deputy-Judge-Advocate-General was now vacant, and there was a sum of £1,000 a year in the Estimate which was allotted for his remuneration. There were three offices. First, the Judge-Advocate, whose emolument was nil; secondly, the Deputy-Judge-Advocate, whose emolument was £1,000 a year; and in the third place, there was another Deputy-Judge-Advocate with an emolument of £700 a year. It was pretty clear that Sir Francis Jeune was not able to devote, although he sacrificed much private time and leisure, the whole of his time to the discharge of the duties of this office. It was, however, quits possible at this juncture for some rearrangement to be made without increasing the charges upon the State, quite possible for some provision to be made with regard to the discharge of the duties of the office which would meet the point of the criticism he had ventured to make, criticism not his own, but criticism which rested upon the authoritative expression of opinion of several Committees, and which sought to restore the constitutional condition which ought to attach to this office, and every similar office under the Crown, giving the House a control which, as matters stood, was entirely absent. He suggested that it was quite possible to make the present holder of the office a Member of the other House of Parliament and that an emolument could be attached to the office, so that this House would get direct control; without changing the present tenure, it was quite possible to arrange it on such a basis that they might demand explanations from, and visit censure upon, the present occupant of the office, and this would enable him to answer Questions and publicly defend the reasons which had actuated his conduct. Of course, the other solution was that the right hon. Gentleman might see his way to so reorganise the finance of the Department without any additional burden, as to make some more appropriate arrangement.

DR. FARQUHARSON (Aberdeenshire, W.)

said he had taken a great interest in this question for a good many years, and he had made a good many attempts, unfortunately futile, to bring the matter under the consideration of the House. They had a preliminary canter on the subject not long ago, and he made a few observations then; but he was glad they had now a more formal consideration of the whole question, and he congratulated the House upon the fact that it had fallen into the capable hands of the Member for Leeds, who had brought all his legal acumen and learning to bear on the question, which was well worth the consideration of the House. The hon. Member respectfully urged upon the Secretary of State for War to take this golden opportunity of reconsidering the question. He associated himself with the remarks of the hon. Member for Leeds as to the services of Sir John Scott, whose lamented death had placed at the disposal of the Government a considerable sum of money, and which would give them the opportunity of rearranging and reconsidering the whole matter, and, of giving a sympathetic consideration to the important question before them. Of course this was not a part of the question. All he would say was that he had always felt great regret that they had lost touch, grip, and control of very important constitutional business. He looked upon this as a very grave constitutional question, and he thought, in the interests of the soldier, it was of very considerable importance that he should be able to appeal. He also associated himself in every way with the observations made about the Judge-Advocate-General, Sir Francis Jeune. He had considerable sympathy with him. He had been doing this work for a great number of years, and he had been unpaid. He thought he had a great grievance that his services had not been remunerated by the House in a substantial manner. But, as he had already pointed out, they could not discuss Sir Francis Jeune; he was in the serene atmosphere where criticism was impossible. They had lost grip and control of one very important part of their constitutional business. He looked upon the question a good deal in the interests of the private soldier, who was very helpless in the matter. He had no vote and no one directly representative of him in the House: who could bring attention to his grievances. Therefore, he thought he, above all men, needed the protection of the highest Court of Appeal which was open to him, and which had been open to him up to a very few years ago, because, as he ventured to point out to the House the other evening, the punishment for military offences was very much in excess of what was meted out to the ordinary person under the civil law. He, therefore, did think it was unfortunate that the soldier had lost the right of appeal to this House which he used to have, and which he thought he ought to have been allowed to retain. He did not want to labour the question any further. They had had the points put before them with very great ability by his hon. friend; and he only rose for the purpose of urging the Government to take the matter into their very serious consideration, taking the opportunity of the present time, when Sir John Scott's unfortunate death had placed money at their disposal, of considering some means by which they could regain their old constitutional control.


said the discussion was now exhausted, except for this interesting and technical point raised by the hon. Member for Leeds. He had no quarrel with him for having introduced the question or for the remarks he had made in support of his views. He associated himself with all that he had said of the learned Judge who had so long undertaken this onerous office without any remuneration for public work carried on during twelve years; and he thought it was a thing upon which they might reflect with some satisfaction, that since Sir Francis Jeune at His Majesty's request had accepted the office, there had been no case, as far as he could remember, brought before the House where his decision had been impugned. He was inclined to agree with the hon. Member as to the substance of his arguments. He was himself very much struck when he first took up his present duties by the apparent anomaly which the constitution of this office at present presented. The hon. Member had pointed out that they were in this situation, that an office, which for many years had been occupied by a person who was responsible and amenable to Parliamentary control, had now been removed entirely outside the scope of Parliamentary authority, in consequence of the fact that it was now held by a Judge of the High Court, who could only be removed from his office by an Address from both Houses to the Crown; and of course he had indicated a way of exit from this dilemma by which the present holder of the office might come under Parliamentary criticism, and, if necessary, Parliamentary censure; but this would not remove the ground of his objection. He thought they were bound, in view of the opportunity which had arisen and to which the hon. Member for Aberdeen had referred, to take into consideration the future of this office, and, though he should deprecate any hasty action in the matter, ho did not think this was any reason why they should not lay down some principle as to their future action, pretty clearly. He would not go to the lengths of the hon. Member in defining the duties of the office in the future, and he thought the hon. Member had gone a little too far, further than was necessary for the purposes of his argument, in pointing out that there was no appeal from the decision of the Judge of the High Court. There was no appeal in many cases from the decision of Judges of the High Court, apart from the Judge-Advocate-General. He supposed there were many cases where the decision of a Judge was absolutely final and where, if there was an appeal, it was certainly not an appeal to this House.


In every case in which a Judge acts he decides after hearing the parties and arguments, but the Judge-Advocate-General decides without hearing the parties or arguments.


said he appreciated the distinction, but lie understood the point the hon. and learned Member alluded to was that they ought to have an appeal to this House. He certainly should not readily consent to any judicial person's acts being made the subject of review in the House. He could not recollect, and probably even the hon. and learned Member could not give him an example, of an attack having been made in the House upon any Members who had formerly held the office, on the ground that they had given an incorrect judicial decision or they had incorrectly used their discretion. He did not desire, and he thought it would be most unfortunate for the Army, that the House should be made a Court of review of decisions. He thought, however, that the office ought to have consideration, with the object of changing at an early opportunity the character of it. He was not quite sure that the change which the hon. Member seemed to think best was really the best or was the only one. He thought he was correct in saying that the procedure which the hon. Member suggested had never been suggested in the Royal Navy, and he did not know that there had been any public censure of the administration of justice in the Courts-martial in the Navy; quite, the contrary. He thought they should consider whether it would not be better to create a judicial officer who would hold the position of Judge-Advocate-General to the Army and who would be the legal adviser of the War Office. Of course, that would give the hon. Member and others the opportunity of criticising any action which was considered to be improper, because criticism would then be directed to the representative of the War Office and not to the actual person who had exercised his discretion to the best of his ability. The office of Judge-Advocate-General, as he understood it, was twofold. They entrusted certain very important powers to the officers of the Army under very strict limitations, and as long as their duties were performed strictly within the terms under which they were confided to those who exercised them, they were content to accept the discretion of the officers; but the Judge-Advocate-General existed to protect the Courts from the illegality of exceeding their statutory powers, and his advice was also important for the protection of the person under trial, and it was most necessary that the liberties of soldiers exposed to this somewhat Draconian code should be strictly safeguarded. These were the duties the Judge-Advocate-General had to fulfil, and he was not by any means convinced that they might not be more effectively fulfilled by a judicial officer whose whole time was given to the duties, rather than by gentlemen of eminence, like those Judge-Advocates who formerly sat in the House of Commons, whose acquaintance with the Army was comparatively limited, and who were compelled to depend upon deputies for nearly all the business they did in the House. If the hon. Member would be content to leave the matter there, realising that he agreed with him on the principle, that he would take counsel as to the application of the principle, and that, while recognising the invaluable services rendered by the present holder of the office, he was of opinion that the tenure and the character of the office might be modified in the future, the discussion would have been advantageous to all parties concerned.


agreed that this was a very intricate and complicated business, and nothing ought to be done in a hurry. He was responsible for the first appointment of Sir Francis Jeune to the office which he had held with so much advantage to the country and honour to himself. At that time the position had got into a tangle, and there appeared to be no way out of it except to appoint a man of high position and great dignity and ability to fulfil the duties for a time and to give an opportunity for the consideration of the whole matter. But it was never contemplated that this provisional arrangement should go on for twelve years, and it would not have gone on for twelve months even but for the confidence which everyone felt in this distinguished Judge. Rut he was of opinion that some remedy ought now to be applied. The present arrangement was not satisfactory in itself, because it was not seemly that a Judge should also be, in a sense, an Executive officer mixed up with administration. He had heard a great many suggestions made. One was that a third law officer of the Crown should be appointed, who would assist the Government in their legal business, to the relief of the other law officers, and who should be rewarded from that inexhaustible fund represented by the emoluments of the existing law officers. There were many ways in which an arrangement might possibly be made. But the great matter was to have at the head of this office an independent person of sufficient authority and independence to retain the confidence of the Army. He did not think that this independence was increased if they tried to mix up a quasi-judicial office with administrative functions or with a connection with any Department or Government of the day. But the person selected ought not to be an unknown or obscure person. He ought not to be a man destitute of knowledge of law, or wanting in the qualities of tact, discretion, and independence. The right hon. Gentleman had promised to give the whole matter his consideration, and he hoped he would be able to place the arrangements on a better and a permanent footing.

COLONEL KENYON-SLANEY (Shropshire, Newport)

said it was of first-class importance that there should be at the hack of all Court-martial work a civilian of undoubted legal knowledge as the ultimate Court of Appeal by which a soldier's case might be reviewed quite apart from any military prejudice whatever. He strongly urged, however, that nothing would be more unfortunate or disastrous than any arrangement under which the findings of Courts-martial could be made the subject of Party wrangling in this House. Nothing more subversive of the discipline of the soldier, and of the good management of Courts-martial could be conceived than the idea that as, a grievance was alleged, electioneering and wire-pulling considerations should come into play.