NAVAL DISCIPLINE (AMENDMENT) BILL. (Hansard, 16 June 1938)

§ The First Lord of the Admiralty (Mr. Duff Cooper)
I beg to move, "That the Bill be now read a Second time."
This Bill is a simple one, and I hope that it will prove uncontroversial. Its object, as stated at the beginning, is to amend Section 90 of the Naval Discipline Act. That section applies to the officers and men of ships, not men of war, which are taken up by the Admiralty in time of war or in time of emergency for naval purposes. The section in question needs amendment for three reasons. The first is that, as it is framed at present, it applies only in time of war. Cases of emergency may arise both before the outbreak of hostilities and also when hostilities do eventually break out. In times of emergency, the Admiralty might wish to avail themselves of the services of vessels and take them up just as though the country were at war; but it would be impossible, as the Naval Discipline Act is to-day, to take up such vessels and put their crews under the Naval Discipline Act.
Further, in these times it seems to be the fashion not to declare war, so that a situation might easily arise when hostilities had broken out and nobody knew whether we were at war or not. That is one important consideration which has to be borne in mind, and therefore, the words "in time of war" have been dispensed with altogether. Another provision of Section 90, as drafted at present, refers to the ship's companies, crews and officers of these merchant vessels which are taken up by the Admiralty, and applies to them as ship's companies the Naval Discipline Act. Supposing that, as frequently happened in the last War, men serving in one of these vessels were transferred to another, or sent ashore for training purposes, or sent to hospital, strictly speaking, from a purely legal point of view, it has been held that the 505 Naval Discipline Act would therefore cease to apply to those men. That would be obviously an unsatisfactory position while they were still in the service of the Government, and serving under naval rules. That difficulty will be overcome by the Bill, which will apply to all men signing an agreement to serve in those circumstances.
The third point is that frequently difficulties arise as to the exact status of men when they transfer from their former occupations to the naval service. In their former occupation, they may have been officers or petty officers, or ratings, and it was not always clear exactly what their position was when they came under naval discipline. The Bill will give power to settle those questions by Order in Council. Such difficulties as I have mentioned arise owing to the great divergencies in the kinds of shipping which the Admiralty take over in a time of emergency. For instance, they might take over a small motor boat with a crew of two men who could officially claim to hold high rank, one as captain and the other as chief engineer, but who could hardly expect to hold corresponding positions in the Royal Naval Service. That matter, as I say, will be settled by Order in Council, and no man will transfer from one Service to the other and come under the Naval Discipline Act without first knowing whether he is going in as an officer, petty officer or rating.
That brings me to the last word which I have to say upon the Bill. Despite any fears which any hon. Member may entertain that there is anything in the Bill which can possibly be said to savour of compulsion, that is not the case. The Bill is not the thin end of any wedge. It is based purely on the voluntary principle, and no man can come under its operation unless he voluntarily enters into an engagement with the Admiralty to serve His Majesty.

§ Mr. Logan
Will the right hon. Gentleman explain whether, in regard to the ordinary Mercantile Marine, the Bill will make any difference to men who take service in the special branch that will be under the direction of the Government?

§ Mr. Cooper
The men to whom the Bill applies will already be serving in a ship which is taken over by the Government. When the ship is taken over a man will 506 have to sign a special form which will say: "I agree to serve under the Government in this ship."

§ Mr. Logan
Will the convoy branch of the service come under that particular kind of regime?

§ Mr. Cooper
I am not clear what the hon. Member means.

§ Mr. Logan
I am taking it as being the same as it was in the last War when we had special ships going out on convoy. Would that particular type of service for merchant ships come within this proposal?

§ Mr. Cooper
The merchant ships were not the convoys but were convoyed. The convoy was provided by men-of-war, and the men in merchant ships under convoy will be men who have remained in the Merchant Service. This refers to ships taken over for naval duties.

§ Mr. Ammon
As far as we can see, the question of compulsion is safeguarded in the terms Of the Bill, but there are one or two points on which I wish to ask for information before the Bill receives a Second Reading. I am a little disturbed by the fact that the right hon. Gentleman made more than one reference to the taking over of ships. As I read the. Bill, there is no question here of taking over ships. The Bill is concerned only with personnel. First, I wish to ask whether the repeal of Section go of the Naval Discipline Act includes 90 (a), and 90 (b). Secondly, what bearing has the Bill on the Royal Naval Reserve and the Royal Naval Volunteer Reserve? Does it apply to these organisations or is it something entirely separate and distinct from them? I take it that the men to whom the Bill applies are men who are already in some way in the sea service?

§ Mr. Cooper
Men in ships which may be taken over.

§ Mr. Ammon
They may be fishermen. In any case, they will be men who are in some way engaged at sea, and they will be asked to register their willingness, when called upon at any time, to serve His Majesty. The Bill also stipulates that such persons are to be under naval discipline whether on board ship or not. Does that mean that when a man is pur- 507 suing his ordinary occupation and there is no emergency, he is still liable to be subjected to naval discipline? It is on a few points of that kind that more information is desirable, but, as far as one can see, the Bill is an improvement on existing conditions and we are not likely to offer any opposition to it if the right hon. Gentleman will deal with those points which I have mentioned.

§ Mr. Dingle Foot
Having heard the First Lord's speech I am sure we all concur in the view that the Bill serves a necessary purpose. I rise not to challenge its main purposes but to enter a protest against the way in which it is drafted. In Clause 1, Sub-section (1), occur these words referring to the Naval Discipline Act: The provisions of this Act shall, with such modifications and adaptations (if any) of those provisions as His Majesty may by Order in Council prescribe. It is true that the Bill proceeds in Subsection (2) to say that an Order in Council made under the Section may prescribe a certain matter mainly the rank of the persons who come under the operation of the Bill. But to my mind Subsection (2) does not comprise any words of limitation. It does not appear to limit the generality of the words in Sub-section (1) to the effect that the Naval Discipline Act will apply to those persons, with any modifications and adaptations that may be made by Order in Council. There will be no Parliamentary check on those Orders in Council, and we cannot tell when we pass this Bill exactly what is to happen or what code of discipline is to be applied to the people who are subject to this Measure. The words which I have quoted place a complete dispensing power in the hands of the Government of the day and that, I submit, is a very serious matter.
The Naval Discipline Act, 1866, sets out the whole code of naval discipline, and, in particular, the way in which courts-martial are to be conducted. To give one example, it is provided in Section 58 (8) that the prosecutor shall not sit on any court-martial for the trial of any prisoner whom he prosecutes. That is a necessary and salutory provision, but it would be possible under the terms of the Bill to dispense with that safeguard in the case of the people who come within those 508 terms. It is also provided in Section 69 that when a court-martial has taken place, the judge-advocate or deputy judge-advocate or person officiating as deputy judge-advocate shall transmit with as much expedition as may be, the original proceedings or a complete authenticated copy thereof, and the original sentence of every court-martial attended by him to the commander-in-chief, or senior officer, who shall transmit them to the Secretary of the Admiralty for the time being and any person tried by court-martial shall be entitled on remand to a copy of such proceedings. There, again, is a very necessary provision obviously designed to make possible review at a later stage of the proceedings of a court-martial. But it will be possible under this dispensing power, if I read the Bill aright, to cut out that safeguard as well. One could give other examples from the Naval Discipline Act. The Bill, therefore, seems to place a very wide power in the hands of the Admiralty because these Orders in Council would be passed on the advice of the Admiralty. In other words, we are considering here an example of what is generally known as the "Henry VIII Clause" which has, before now, been considered by this House. It may be within the recollection of the right hon. Gentleman that this type of Clause was considered with great care by the Committee on Ministers' Powers—the Donoughmore Committee—on which all parties were represented and which presented a unanimous report after three years' consideration. May I remind the House of their conclusion on Clauses if this kind: There can be no doubt of the extreme convenience, from the point of view of those charged with the duty of bringing into effective operation a far reaching measure of reform, of a dispensing power such as that contained in the so-called Henry VIII Clause.' But again the argument of convenience may be pushed too far. Even though it may be admitted that Parliament itself has conferred these powers upon Ministers, and must be presumed to have done so with the knowledge of what it was doing, it cannot but be regarded as inconsistent with the principles of Parliamentary government that the subordinate law-making authority should be given by the superior law-making authority, power to amend a statute which has been passed by the superior authority. It is true that the power has been sparingly used and that it has been used with the best possible motives. It may also be that the exercise of the power has not, in practice, given ground for complaint. None the less, it is a power which may attract the hostility and suspicion of persons affected by its exercise, 509 who, if they are aggrieved by a particular exercise of the power, are tempted to impute to those who exercise it motives which do not in fact exist. That was their argument, but they went on to make a very definite recommendation with regard to this type of Clause, because on page 65 of their report they say: The 'Henry VIII Clause' should

(a) never be used except for the sole purpose of bringing an Act into operation;

(b) be subject to a time limit of one year from the passing of the Act."

We are constantly told, and I have often been told at Question Time by the former Prime Minister, that the Government are always bearing in mind the recommendations of the Committee on Ministers' Powers, but they do not appear to have borne them in mind on this occasion, and it appears to me that when we have what appears to be an obvious departure from their recommendations, we ought at least to have a word of explanation from the Minister in charge of the Bill as to why they have been departed from.
I do not dissent from the main purposes of the Bill, but at a later stage my hon. Friends and I propose to put down one or two Amendments dealing with this point. Personally, I should like to see these words which I have quoted, giving this dispensing power, cut out of the Bill altogether, but if the Government are not able to agree to that, I would make two suggestions—first, that these Orders in Council should not become effective without the affirmative assent of the two Houses of Parliament, for after all we are dealing with naval discipline, which closely affects the rights of the subject; and, secondly, I would suggest that effect should be given to the recommendations of the Donoughmore Committee that I have just read out, and that the exercise of this dispensing power should be confined to a period of 12 months from the passing of the Act. I hope the First Lord will give serious consideration to the point that I have endeavoured to raise.

§ Mr. Logan
I think the Government are justified in asking for a Bill to maintain discipline in the Navy, and in what I am going to say I am concerned only with a question of interpretation. I am at a loss to understand, in regard to Subsection (2) of Clause, why there should 510 be any differentiation. Perhaps it is my lack of knowledge in regard to naval matters, but I am wondering why it is that the rule applicable to the Navy could not be applied all round and why some other system has got to be made operative in this particular case, because it says: An Order in Council under this section nay direct that, subject to such exceptions as may in particular cases be made by or on behalf of the Admiralty, persons of any such class as may be specified in the Order… Have we not enough powers already, when one takes service in His Majesty's Navy, to be able to keep a man absolutely under discipline? As I say, I am ignorant in regard to the rules of the Navy and do not know what they do, but I wonder why a special regulation has to be brought into existence, although I am in agreement with the idea that discipline ought to be maintained in the Service.

§ The Civil Lord of the Admiralty (Colonel Llewellin)
Several interesting points have been raised by hon. Members, and perhaps I may deal first with the hon. Member for the Scotland division (Mr. Logan), as he has just completed his speech and his point remains in my mind. The object of Subsection (2) of Clause 1 is merely that an Order in Council shall be issued to say what ranks different types of persons in the Merchant Service or fishing fleets, shall have when they take on these engagements. It has no other purpose than that. With regard to the hon. Member for North Camberwell (Mr. Ammon), he referred to what my right hon. Friend said about our taking over ships. We thought it was better, when drafting this Bill, to refer to the persons rather than to the ships, because this Clause deals with the discipline of persons and not with ships, but in effect we do not intend to take these men until we actually take on a ship in which they are serving. They will then be asked whether they will come with the ship that the Admiralty is taking over for one purpose or another. They will be offered an engagement form to sign, and if they like to sign it, they will come under the terms of the Naval Discipline Act and will be to all intents and purposes part of the armed forces of the Crown.

§ Mr. Ammon
Does that mean that it would be possible for the Navy to commandeer a ship and then, afterwards if some of the crew did not agree to sign on, they would find themselves out of employment?

§ Colonel Llewellin
That is the position now.

§ Mr. Ammon
In time of war.

§ Colonel Llewellin
Yes, in time of war, when there are general powers for commandeering ships. These ships that we take up in a time of emergency would probably have to be taken up by agreement, but then the personnel would either go on serving under the new conditions, by a new agreement to serve the Admiralty in these cases, or they would be free to say, "We will undertake no such engagement," and then, of course, they would have to find other employment. The hon. Member for North Camberwell asked also whether Sections 90A and 90B are being repealed by this Bill, and the answer is that they are not and that they remain effective just the same. He asked whether the Bill concerns the Royal Naval Volunteer Reserve. The answer is that it does not, and that they are a quite different personnel. He further asked why it should apply to men whether they were on a ship's books or not. I think my right hon. Friend explained that in the War it was necessary to have a training reserve, that men had to be transferred to it, and that, of course, some of them, as many of us have to do either in war or in peace, had to be admitted to hospital. If they were admitted to naval hospitals, it was doubtful whether the Section as it was previously then applied to them. That is the reason why the Clause is drawn as it is.
The hon. Member for Dundee (Mr. Foot) raised a more complicated point, on a matter which he has to some extent made, if I may say so, his own baby, and he is always anxious to find provisions such as we have in this Bill with regard to modifications by Orders in Council. He will realise, as he and I travelled the same circuit together, that I fully appreciate the point which he has made. I am not going to give him either of the assurances for which he asked, but I am going to give him another assurance, namely, that I will personally look into this matter before the Committee 512 stage, and if we find, after due consideration and consultation in the Department, that we can dispense with these words or modify them in some way, we shall certainly do so at a later stage of this Bill.

§ Mr. Foot
I am grateful to my hon. and gallant Friend for that assurance, but surely he will give us some word of explanation why the recommendations of the Donoughmore Committee have been completely ignored in this case.

§ Colonel Llewellin
It was thought that it might be necessary to have greater elasticity with regard to this personnel. No such sinister purposes as were suggested by the hon. Member occurred to us, and we did not need to treat this personnel any differently than the ordinary naval personnel, but I will keep the undertaking that I gave, that we will carefully consider these words, and I think that is the most that the hon. Member can expect me to say on the Second Reading of this Bill. I therefore hope that, with that assurance, he will now allow us to get the Second Reading, and possibly he or ourselves will have Amendments down on the Committee stage.

§ Mr. Logan
If this Bill passes, it practically changes the position of a man and puts him into the naval service, and I wonder whether any liability arises from the point of view of compensation in regard to injuries and, if so, what is the status of the individual who will now come under naval discipline and who may meet with an injury. How is he to be treated? There is nothing in this Bill that deals with the change of status, but there is something in the life of a man that is being changed in regard to the new service which he enters, and one wonders what the position will be after that change.

§ Colonel Llewellin
The position of the man who engages under the new Section will be the same as that of the man who engaged under the old Section, except for the fact that when he goes ashore, perhaps for training or to go into hospital, he will still be under the Naval Discipline Act. It will also be possible to take him up a week or two earlier in an emergency period than was possible under the old Section of the Act. With regard to his rights when he is taken up, they are left unaffected by this modification of 513 the Statute. It was found that they were dealt with by special rules during the last War, and no doubt similar special rules will be made in those cases if we unfortunately have to call these men up, either in time of emergency or in time of war.

§ Mr. Logan
As I understand it, the individual or a crew will be commandeered in a time of emergency. They will voluntarily go over and sign special articles, and the Government will then take control of them. The responsibility for them, therefore, becomes that of the Government. Their ordinary form of employment is ended and they have accepted service and come within its discipline, and, therefore, they are in Government service. I am wondering who is to bear responsibility for them, because the late owners with whom they were serving have no further control over them.

§ Colonel Llewellin
The Government completely bear all responsibility for these men when once they are taken on into the Naval Service.