CLAUSE 3.—(Payments for copies of proceedings of court-martial.) (Hansard, 26 March 1947)

§ Mr. Sydney Silverman (Nelson and Colne)
I understand that the purpose of Clause 3 is to increase to a person requiring a copy of court-martial proceedings the charge which will be levied against him. I think that the Committee will agree that the number of complaints that have been made about court-martial proceedings, and the occasions on which the House has thought it necessary to ask for inquiry to be held into court-martial proceedings may have this result, that it may be anticipated that more cases will arise in which requests for copies of proceedings will be made. I should have thought that it was highly undesirable at this time to increase the cost of obtaining copies of these proceedings. I should have thought that the Committee would be anxious to facilitate inquiry. We cannot facilitate inquiry by increasing the charge for the copies to the men who may want them. I understand that the reason given for this is that the costs of copying have increased. Even if they have, that would be no sufficient reason, in my view, for passing on the whole increase to the unfortunate soldier who requires a copy of the proceedings. Where a man has been the victim of court-martial proceedings, I am not at all sure a good case could not be made out for allowing him to have a copy of the proceedings without any charge at 1243 all. I am not however arguing that at this moment, but only suggesting that the charge should not be increased.
One further point I should like to make is, that this Clause contains no maximum of any kind. Nor is any machinery provided to show how the cost is to be estimated, or to say who shall estimate it. The result is that the Army Council, presumably, will be able to fix for itself what the charge shall be; and, for all we know, fix it at a figure which would be prohibitive in the case of poor persons. It seems that this Clause ought not to be agreed to at all; but if it is agreed to, we ought to insert some maximum beyond which the Regulations shall not be allowed to go. Just as, in the former Act, there was a limit of 2d. per folio, so there ought here to be some limit per folio, and not merely a cost estimated by a party which may have an interest, if anybody has any, for preventing inquiry, without any check or control of any kind.

§ The Financial Secretary to the War Office (Mr. John Freeman)
This is a very good example in itself why it is not desirable to put a precise figure into the Bill. The provision of the Army Act, has stayed in its present form for something over 50 years, when the cost of copying these folios was, in fact, 2d. per folio. The cost has increased, and, in order to avoid making Amendments year by year, it appeared to us advisable not to lay down a fixed maximum figure. Of course, I give the categorical assurance to the Committee that there is no intention whatever on the part of the Army Council to exploit the situation, or to charge unreasonable prices for obtaining these copies. The charge, I am advised, on present costs will, in fact, be 4d. In any case, there are provisions—we are considering at the moment extending them—for providing legal aid in cases where there is financial hardship. I must invite the Committee to say that it is not unreasonable that we should make a charge of 4d. a folio for copying these proceedings. The costs, of course, are estimated by the firm, one of the recognised firms which actually undertake the copying of the proceedings. I hope my hon. Friend will not press the point.

§ Mr. Eric Fletcher (Islington, East)
I do not consider the Minister's reply at all satisfactory. He has told the Committee 1244 that the provisions of this Bill have stood for about 50 years, and I understood him to say that, for the last 50 years, the charge has been prescribed at 2d. per folio, because that has been the estimated cost to the Government of making these copies of proceedings. If that is so, and if the costs have now risen to the extent of justifying an increase to 3d. or 4d., it does seem reasonable that this House should retain its control over the charge made to people who are entitled to receive copies of the proceedings. It does not seem to me to be good enough for the Minister to say that it is better to let the Army Council prescribe this charge in future. This Act is, after all, a matter which requires Parliamentary consideration every year by way of this annual Bill. If it is necesasry to make an increase now, let the increase be specified, justified to the House and provided for in the Bill.
It seems to me that this is another and quite unnecessary example of the Executive removing matters of varying importance from Parliamentary control but, whatever the degree of importance they may have, this is a matter in which the Committee is concerned to preserve the rights of the subject. I suggest that justice will be done and administrative convenience equally well served if the appropriate Amendments were made now by providing for a specific increase. Persons interested are entitled to know the cost at which they can obtain copies of court martial proceedings, just as, in civil matters, persons are entitled to obtain copies of the proceedings in a Court of Record, where the cost is prescribed in rules which are changed from time to time where necessary, and laid before the House. That has always been the practice in court martial proceedings. I hope the Minister will reconsider the matter, and that he will agree that, instead of this proposed alteration, there should be a modification of the existing provision and a maximum prescribed so that people may know the cost at which they can obtain these proceedings, and, at the same time, so that Parliament may exercise the same control which it has exercised for the last 50 years.

§ Mr. Stephen (Glasgow, Camlachie)
I am not satisfied with the reply of the Minister. I think he might have given us a little more information with regard to the estimated saving. What was the loss on 1245 this business last year which has impelled the Government to bring forward this new Clause? What estimated saving will there be to the community? If it is a material saving, we can understand why a change should be made, but I think the Committee is entitled to have some information. It is also a fact that it is of very great importance that people should be able to get legal documents without heavy expense, and, in the circumstances in which we are placed today, with the Army constituted, as it is, on a conscript basis, it is of the utmost importance that people should be able to obtain copies of court martial proceedings, even if it should mean a certain amount of loss to the State. I therefore, hope that the Government will give us some idea of the costs involved and the saving which it is estimated will be made by the acceptance of this alteration.
Further, I think the Financial Secretary was very weak in his argument on the question of why there should not be a maximum in the future. I could not follow his reasoning. He told us that the charge was actually going to be 4d., which is an increase of 100 per cent. If it is necessary that the charge should be 4d. per folio in future, why should it not be mentioned at that figure in this Bill? I am not at all satisfied, and I hope the Secretary of State will give us more information.

§ Mr. Charles Williams (Torquay)
I also think the Committee would be right to ask for a little further information on this matter. There was not quite the usual degree of reluctance on the part of the hon. Gentleman to give any information at all. He did allow a little to come out. We are dealing today with a citizen Army, and it is much more important, from my point of view, in this question of court-martial proceedings that we should be absolutely certain that the soldier has the easiest possible access to the evidence given against him. We have been given the figure of 2d. per folio for a certain kind of report. That is the figure which the soldier has had to pay for these reports. I am not very well acquainted with these documents, and I do not know how long the reports may be, but I assume that they vary considerably in length. There is no reason why we should not be given some idea of their length.
1246 My next point is that the Committee would be on sound lines in insisting on a figure being inserted in the Bill, even if it has to be changed from year to year, that would have the good effect of enabling the House of Commons to keep an eye on the Services, which is always a valuable thing, from the House of Commons point of view. What surprises me is the idea that 3d. or 4d. would be enough in future. Taking it as 4d., what surprises me is that, in the course of 50 years, the cost of these reports has only doubled. I should have thought that, taking into account the increased cost of labour, paper and printing, the cost would have been much higher, and it is for that reason that I say we should be well advised to lay down a definite figure. If we leave the matter vague and indefinite, a certain pressure may come from the Treasury, as a result of which the charge might go up to 6d., and we should know nothing about it. That is the way these charges do go up. [HON. MEMBERS: "Hear, hear."] I am glad to have that remark confirmed from the other side of the Committee.
For those reasons, I think it essential that a definite figure should be inserted. But there are also other reasons why it is advisable that on an occasion such as this—one of the very rare occasions on which we can make ourselves heard in any way on these matters—we should express our view. We are definitely up against the very curious fact that, for two generations, a definite figure has been inserted for this purpose. I am not sure that when a man in the Army is in difficulties, especially if he is abroad—I am not worrying so much about the soldier at home—he should not be given the report of the case free of charge. Might it not be possible, in those circumstances, to let him have the report without charge? Not only that, but could it not be made absolutely certain that he will be given the report? It seems to me that it should be part of his right at the trial, that the report will be given to him. Those are points on which we ought to have some further information before we leave this Clause.

§ The Secretary of State for War (Mr. Bellenger)
I think that the Committee is pursuing the wrong point; certainly the hon. Member for Torquay (Mr. C. Williams) is. What he is trying to obtain, and, what I think my hon. Friend 1247 the Member for Nelson and Colne (Mr. S. Silverman) and my hon. Friend the Member for East Islington (Mr. E. Fletcher) were also striving for—and I have great sympathy with their view—is that, at any rate in certain cases, the soldier should not be charged anything at all. But this Clause has nothing to do with that. There are properly recognised methods whereby the soldier can be helped, not only in this respect, in obtaining the official copy of the evidence given, but in a far wider range of legal assistance. Therefore, what hon. Members are asking for today will not be achieved by this Clause; it will be achieved in various other ways which we have at our disposal, not necessarily by Act of Parliament, but by Regulations which we issue in the War Office for the purpose of helping a soldier to defend himself. My hon. Friend the Member for King's Norton (Mr. Blackburn) who is a member of the special committee set up to inquire into courts-martial would know this point better than I do, but it is possible that the point raised by the hon. Member for Torquay may be one of the things which that committee is considering, namely, the best possible way to give legal aid, including the subject matter of this Clause, to the soldier who has to defend himself at a court-martial. All that this Clause seeks to do is this. Incorporated in the Army Act of many years ago was a figure of 2d. per folio for the evidence, if it was required. Not every soldier wants that evidence, and, of course, this applies not only to the ordinary soldier, but to an officer as well. As my hon. Friends know, legal charges have increased—

§ Mr. S. Silverman
These are not legal charges.

§ Mr. Bellenger
These charges have also increased. The charge for copying evidence today has gone up from 2d. per folio and is now, I think my hon. Friend said, 4d. per folio. That is what I am advised.

Mr. McKie (Galloway)
The hon. Gentleman said that it had gone even higher than that.

§ Mr. Bellenger
If that is the case, it is an additional reason for having the Clause in this form so that, instead of having a fixed sum of 2d. per folio, which applied 50 years ago, we shall be given scope, 1248 without coming to Parliament, to be able to say that the individual shall be charged the proper price for the evidence, and that the taxpayer shall not be asked to subsidise the cost, except in those cases where we think it necessary to help the soldier, both legally and by the various other provisions at our disposal. I hope that my hon. Friends will not press this point. It is purely a matter of revising a statute which was passed 50 years ago, and which, unfortunately, has not been revised in this respect since.

§ Mr. S. Silverman
It was passed last year.

§ Mr. Bellenger
Of course, my hon. Friend knows that the Army and Air Force (Annual) Bill is passed every year. It is usually passed without any Debate on Second Reading, but every year various Amendments are incorporated in it to bring it up to date. It may be that the Army Act itself may require considerable amendment in the future, but that, I suggest, is a matter upon which I ought to be advised, and the House agreed that I should be advised on it, when the Special Committee was set up to go into the whole matter of court-martial procedure, including any Amendments they might consider necessary to the Army Act.

§ Mr. Stephen
What about the saving?

§ Mr. Bellenger
It is not a question of saving; it is a question of charging the proper price. I do not know how many soldiers have asked for copies of evidence in the past year. I do not suppose that it would be a very large number, and, therefore, the saving would not be very large. But, if the hon. Member is suggesting that, because it is only a small amount, we need not worry about it. I would say that that can be achieved by an entirely different method.

§ Mr. Silverman
I apologise for troubling the Committee again, but I would say, with all respect, that my right hon. Friend ought to pay more careful attention to what is being said to him, and to what we are asking the Committee to do. He complains that hon. Members opposite and on this side of the Committee are pursuing a false point. But he himself has been basing his argument on a case which is not covered by this Clause, and which was not referred to in any of the speeches which have been made. This matter has 1249 nothing to do with copies of evidence being made available to prisoners undergoing trial at courts-martial. My right hon. Friend should read Section 124 of the Army Act which entitles a person tried by court-martial to obtain a copy of the proceedings thereof upon payment of a prescribed sum. But that is not during the course of the proceedings; that entitles a man to have a copy of the proceedings at any time within seven years after the trial.

§ Mr. Bellenger
If my hon. Friend will allow me to interrupt him for a moment, I would like to ask the Committee for what purpose they think that a man would want a copy of such proceedings. Generally speaking, he would want it in order to submit a petition to the King, either to alter or to quash the sentence.

§ Mr. Silverman
That may well be his reason, but there is nothing in the Clause about his reason for wanting the evidence, and we are not entitled to assume what that reason might be. He is given an absolute right to obtain a copy of the proceedings for his own purpose, and the point I am making is that, when this matter is confused with the right of the prisoner to be informed of the evidence against him, that is confusing the issue, and raising a point with which we are not concerned at the moment. We are concerned with the point that a man shall be allowed to exercise his absolute right to obtain a copy of such proceedings on demand for seven years after the court-martial proceedings. There is a strong case, at the present moment, for giving such a man a copy free of charge, but I am not pressing that point now. I am saying that, except in such a case, the rate of payment ought to be prescribed in the Act. It is quite idle to say that we had better not fix a rate because it may stand for a long time, and that the present rate has stood of 50 years. My contention is that it has not. It has been expressly reviewed each year, and whatever figure we insert now will be reviewed this day 12 months.
It may be true, as my right hon. Friend said, that the House as a whole does not trouble itself very much on the Committee stage with the details of these Clauses, but that does not mean that they should not be considered. I have known the House kept up all night on this Bill, and I am not sure that those all-night sittings were not the most interesting and produc- 1250 tive in the end. But whatever the House does my right hon. Friend has to come back here every year for his Army Act. That is one of the foundation stones of our Constitution. If he wants to make a change in the Measure at any time he has only to say so. He is asking for a change now. He could have asked for it last year or he could ask for it next year. He need not fear that any figure which is put in now will have to stand too long, because he can change it at intervals of 12 months as often as he likes.
4.0 p.m.
Why should we leave the cost to be estimated by an outside private firm? They make their own charges, Parliament takes no responsibility, my right hon. Friend takes no responsibility, the Army Council takes no responsibility. Whoever makes the copy makes his own estimate of the cost, and on the basis of that estimate the Army Council collects the money. I regard that as a most unsatisfactory way of assessing the cost in the case where a man is exercising his statutory right to obtain a copy. I thought when I spoke that the estimate was going to be made by the Law Officers' Department or by the Army Council or by some other authority amenable to Parliamentary criticism, but what the Financial Secretary said when he spoke made the thing worse than ever, because he said the charge was going to be estimated by whatever typing firm did the job. Do we say in the case of any other Government contractor that we will pay on the terms that whoever supplies the goods fixes his own price and the Treasury will pay without question?

§ Mr. Digby (Dorset, Western)
It is bulk buying.

§ Mr. Silverman
The hon. Member has got it wrong. It is bulk buying for which I am pleading. This is to provide for a separate fee in every individual case, with the usual anarchic results, and that is what I want to see changed. I want to see the price fixed so that a man who says: "I do not think I was justly treated at that time; I was not able to do anything about it before, but I would like to have the matter reviewed now. I would like to have my name cleared of the stain, but before embarking on legal proceedings that may be beyond my reach or embarking on a whole series of activities that may not be well founded I should like to refresh my memory with a 1251 copy of the proceedings in which I was involved and I am prepared to pay for it. "I should like a man in that position to know the fee he will have to pay. This House should prescribe what is to be the maximum fee. That is what we have always done, and why should we not do it in this case?

§ Major Legge-Bourke (Isle of Ely)
It is not often that I find myself agreeing with the hon. Member for Nelson and Colne (Mr. S. Silverman), but in this case I should like to support what he said, except in one detail of his closing remarks. At present we do not quite know whether it is possible for a soldier to appeal against a sentence which he has been given. At the present moment there is no machinery, as far as I know, for appeals to be made for rectification in later years, but doubtless after the Committee has reported that may be provided for. There are one or two points to which I would like to draw attention. One of the difficulties which has been mentioned today could have been overcome if, instead of using the word "estimated" in line 24, we had used the word "calculated." It seems to me that would have met most of the complaints. As far as I understand it, though I am no lawyer, an estimate can be broadly interpreted as a rough guess, whereas calculated would mean a worked-out charge. My second point is that I should have thought the right hon. Gentleman would have been in a position to make some distinction between those who are found guilty and those who are found not guilty, and that certainly so far as the first copy was concerned a concession might have been given.

§ Mr. Digby
I too am rather surprised that there is no distinction here between those who are found guilty and those who are acquitted. The Minister has rather assumed that this is concerned only with those who are found guilty, but there may be cases in which those who have been acquitted will wish to have some evidence of what took place at the court—martial in order to clear their characters, perhaps at some future date, and it seems absolutely unjustifiable that this Clause should lay down that they are to pay for their copies despite the fact that the actual charge which was brought against them does not turn out to have been well founded. A second point on which I 1252 should like to comment briefly is the assumption of the Secretary of State that the evidence will be taken down by some outside firm. I cannot understand why he assumes that the evidence will never be taken down under unit arrangements, in which case the actual cost would be absolutely nothing. It would be necessary to make only one extra carbon copy, but under this Clause a charge will have to be made, although the cost to the State will have been nothing more at all. Why does he assume that it will be necessary to bring in outside typists to take evidence at what may be a very short court-martial?

Mr. McKie
I am bound to say that I think the right hon. Gentleman showed himself, and I hope I am not saying this offensively, uninformed about this Bill, which is, after all, an annual Bill which Parliament is required to pass every year. I would remind hon. Members that this has been going on for many years and it was regularly commended by no less a distinguished predecessor of his than Mr. Cardwell. From all sides of the Committee the right hon. Gentleman has been pressed regarding the range of the cost of copies of the proceedings at these courts-martial because it is a matter which affects every hon. Member in the House from a constituency point of view. Therefore, I think the right hon. Gentleman may have something further to say and may wish to put forward some further justification, because he has so far shown very little justification for incorporating this Clause in the Bill. Apart from court-martial proceedings, every member of the public is now very much more interested in the proceedings of this House or of any court of inquiry than has ever been the case before. For instance, everybody knows that the public are reading HANSARD in a way they have never done before.
Our constituents constantly ask us to send them copies of the OFFICIAL REPORT of the Proceedings of this House of Commons. Now the right hon. Gentleman asks us to pass this Clause which proposes to raise the price stated there, and even the increased figure which has been mentioned may not prove to be adequate, because the cost may easily rise to any figure having regard to the inflationary tendencies of His Majesty's present advisers. That is all the more 1253 reason why the right hon. Gentleman should have something very much more definite to say on this matter. Of course I understand that he is rather bewildered at the present time, having regard to the economic chaos in which we find ourselves involved, and that it is difficult for him to arrive at a precise figure, but I think we should have something more definite. He has told us that we must just wait and see, but that will not satisfy us, nor will it satisfy the people who may well be sufferers from the proceedings of a court-martial. Our constituents often have some direct or indirect interest in the proceedings of a court-martial and they will demand, as indeed they have a right to demand, that a report of the proceedings shall be made available to them at the cheapest possible cost. The right hon. Gentleman will probably tell us that he has already said that he is not able to fix a definite figure, and that we must wait and see, but I repeat that that does not satisfy us, and therefore I hope that, if not able to give us a precise figure, he will give a clearer indication of what will have to be paid in the future.

§ Earl Winterton (Horsham)
I listened in respectful silence to the attack, carried out with such distinction as we expect from him, by the hon. Member for Nelson and Colne (Mr. S. Silverman) against the Government. He made a very interesting point. I want to ask one question only on this Clause. It is a point which has already been raised by the hon. and gallant Member for the Isle of Ely (Major Legge-Bourke), who asked why the word "estimated" appears in line 24. Surely the correct word should be, not "calculated" as my hon. and gallant Friend suggested, but rather "actual." I put this forward as a friendly suggestion, and in order to give the Committee an opportunity of considering it and, if necessary, dividing upon it—when I am sure I shall have the very distinguished support of the hon. Member for Nelson and Colne and his very enthusiastic supporters around him, who cheered him with such vigour during his speech. I would ask leave to move as an Amendment to leave out "estimated" and to insert "actual."

§ The Chairman
I cannot accept that Amendment. I would remind the noble Lord that I have already proposed the 1254 Question that the Clause stand part of the Bill.

§ Mr. C. Williams
When the right hon. Gentleman was addressing the Committee just now he called attention once or twice to the speech which I had made. I really think that I did understand very fully the remarks at the opening of this Debate by the hon. Member for Nelson and Colne (Mr. S. Silverman). I seem to remember a time when the right hon. Gentleman himself used to make powerful speeches on the rights of private soldiers, and I see no reason why every ordinary Private Member like myself should not put his point of view when he thinks there is a Grievance to be remedied. We have heard a very interesting suggestion which would, I think, relieve the minds of some of us if the Secretary of State followed it. I will not now deal with the fact that the fixing of any figure is difficult or the fact that we should be able to go into these matters every year, which I believe would be the right course. Since an Amendment cannot be moved now, I suggest that, as it is obvious that the word to which many of us object is "estimated," it would not be impossible—if the Government wished to meet us on this point, as I am sure the Secretary of States does—for them to put down on the Report stage an Amendment to insert "calculated" instead of "estimated." This would simplify matters, and would give us the feeling that the Government were trying to meet the point. The object of a Report stage is that when a good suggestion has been made at an earlier stage of the Bill, an Amendment can be moved. The Government would help us if they would accept my suggestion and the proposal which originated from the hon. Member for West Dorset (Mr. Digby) and was supported by the noble Lord the Member for Horsham (Earl Winterton).

§ Mr. Bellenger
Perhaps I can give the Committee some satisfaction. My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) and the noble Lord the Member for Horsham (Earl Winter-ton) are concerned that there shall be no exorbitant charge made, but that it shall be the actual charge, and the noble Lord endeavoured to move an Amendment to that effect. I am advised that the actual charge at present is 4d. a folio. Hon. Members will not imagine that people 1255 doing this work charge anything they like; I can assure them that the Treasury keep a very careful eye on what they pay for anything, and there is, therefore, a very close guard on charges of this description. I think the feeling of the Committee is that a maximum figure should be inserted and that that maximum figure should be the figure in relation to what it costs the taxpayer. We are responsible for seeing that the taxpayer is not mulcted unnecessarily. I will take an opportunity at a later stage—I do not know whether there will be a Report stage on the Bill that will enable me to put down an Amendment—to ensure, in whatever is the appropriate way, that 4d. a folio shall be inserted. I will take steps to do that later.

§ Mr. Bowles (Nuneaton)
I suppose there will not be a Report stage unless an Amendment has been made in Committee, and, therefore, my right hon. Friend might find some difficulty in moving an Amendment on Report. He covered himself by referring to a later stage. Would not the best way be for the Committee to refuse to allow this Clause to stand part of the Bill, and then, on the Report stage, the Secretary of State could move the necessary Amendment.

§ Earl Winterton
With the permission of hon. Gentlemen opposite, who greeted me with derisive cheers on the last occasion on which I rose to speak—if I may address the Chair with their permission—I would say that we on this side of the Committee are grateful to the right hon. Gentleman for his suggestion, but the point that has been made by the hon. Member for Nuneaton (Mr. Bowles) is of some importance, and I would respectfully ask for your Ruling, Major Milner, on how we can deal with the matter.

§ Mr. S. Silverman
Before you give a Ruling, Major Milner, may I point out that the effect of taking out Clause 3 would be to leave a hole in the Measure which would mean that the whole entitlement to get a copy of the proceedings might be withdrawn?

§ Mr. Bowles
My suggestion was that the Clause should be reinstated on Report by the Minister and the House in an altered form. I did not suggest that there should not be any Clause 3.

§ Mr. S. Silverman
I would have no objection to its being done in that way. I wish to thank my right hon. Friend for meeting the point in substance. I am not greatly interested in how we amend the Clause, as long as it is amended.

§ Mr. C. Williams
On a point of Order, Major Milner. How could this be done unless the Clause were amended? The Secretary of State showed every sort of good will in regard to the proposal, but would it not be the better course to negative the Clause and to reinsert it in an altered form later?

§ The Chairman
If there were Amendments—I do not know whether there will be or not—there would be a Report stage, but if there is not a Report stage, the right hon. Gentleman has said that he will cause an Amendment to be moved in another place. That would be a simple way of dealing with the matter, and it would be much better than negativing the Clause. I understand the right hon. Gentleman is willing that that course should be adopted.

§ Mr. Bellenger
That was what I had in mind. I do not want to forestall any Debate that may take place on the two Amendments that are to be moved, but I had hoped there would not be a Report stage, and my intention would be to deal with the matter in the appropriate and easiest way, which would be in another place.